ORDER OF THE COURT (Chamber determining whether appeals may proceed)

11 November 2021 ( )

(Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court – Request failing to demonstrate that an issue is significant with respect to the unity, consistency or development of EU law – Refusal to allow the appeal to proceed)

In Case C‑424/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 July 2021,

Sun Stars & Sons Pte Ltd, established in Singapore (Singapore), represented by M. Maček, odvetnica,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Valvis Holding SA, established in Bucharest (Romania), represented by M. Stănescu, D.S. Bogdan and G. Bozocea, avocați,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of L. Bay Larsen, Vice-President of the Court, I. Jarukaitis (Rapporteur) and M. Ilešič, Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, P. Pikamäe,

makes the following

Order

1 By its appeal, Sun Stars & Sons Pte Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 12 May 2021, Sun Stars & Sons v EUIPO – Valvis Holding (AC AQUA AC) (T‑638/19, not published, EU:T:2021:256, ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 August 2019 (Case R 649/2018-4), concerning opposition proceedings between Sun Stars & Sons and Valvis Holding.

The request that the appeal be allowed to proceed

2 Under the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of EUIPO is not to proceed unless the Court first decides that it should be allowed to do so.

3 In accordance with the third paragraph of Article 58a of the Statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Rules of Procedure of the Court of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.

4 Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the Statute, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of European Union law and containing all the information necessary to enable the Court to rule on that request.

5 In accordance with Article 170b(1) and (3) of those rules, the Court is to rule as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.

6 In support of its request that the appeal be allowed to proceed, which raises two grounds of appeal, alleging, respectively, a failure to state reasons in the judgment under appeal and infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), the appellant relies on five arguments, by which it submits that its appeal should be allowed to proceed in order to ensure the unity and consistency of EU law.

7 First, the appellant submits that, in paragraph 33 of the judgment under appeal, the General Court wrongly concluded that there is nothing in the file capable of calling into question the assessment of the Fourth Board of Appeal of EUIPO that the relevant public in the European Union has, at most, an average level of attention with regard to the goods at issue. The General Court failed to take into consideration the appellant’s arguments that the average consumer’s level of attention for bottled water is low and gave insufficient reasons for its position in that regard. In so ruling, it distorted the evidence, failed to fulfil its obligation to state reasons for the judgment under appeal and misapplied Article 8(1)(b) of Regulation No 207/2009.

8 Secondly, the appellant complains that the General Court found, in paragraph 67 of the judgment under appeal, that the shape of the VODAVODA bottle is not such as to constitute an indication of commercial origin, without carrying out a specific examination of the overall impression produced by the appearance of that bottle. In so doing, the General Court disregarded its settled case-law, resulting in particular from the judgment of 3 October 2018, Wajos v EUIPO (Form of a container) (T‑313/17, not published, EU:T:2018:638, paragraphs 26, 31 and 34), relating to three-dimensional marks, vitiated the judgment under appeal by a failure to state reasons, distorted the evidence and misapplied Article 8(1)(b) of Regulation No 207/2009.

9 Thirdly, the appellant criticises the General Court for having incorrectly assessed the visual similarity of the signs at issue by confining itself, in paragraphs 87 and 88 of the judgment under appeal, to an examination of the word elements ‘voda’ and ‘aqua’, without concentrating on other elements, such as the shape of the bottles at issue, which is contrary to settled case-law resulting in particular from the judgment of 14 April 2010, Laboratorios Byly v OHIM – Ginis (BILLY’S Products) (T‑514/08, not published, EU:T:2010:143, paragraph 28 and 29). The judgment under appeal therefore adversely affects the unity and consistency of EU law.

10 Fourthly, the appellant submits that the General Court erred in finding that the services in Class 39 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, covered by the mark applied for, and the goods in Class 32 of the Nice Agreement covered by the earlier mark, are not so similar as to give rise to a likelihood of confusion. That finding is contrary to settled case-law resulting, inter alia, from the judgment of 11 May 2011, Flaco-Geräte v OHIM – Delgado Sánchez (FLACO) (T‑74/10, not published, EU:T:2011:207, paragraph 40), according to which goods or services are complementary where there is a close connection between them, in the sense that one is indispensable or important for the use of the other, with the result that consumers may think that the same undertaking is responsible for manufacturing or supplying them. Such a contradiction would be detrimental to the unity and consistency of EU law.

11 Fifthly, the appellant criticises the General Court for having concluded, in paragraph 99 of the judgment under appeal, that there was no likelihood of confusion without having carried out a specific examination of that likelihood and without clearly stating the reasons why it reached that conclusion. That is contrary to the Court’s case-law resulting from the judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C‑766/18 P, EU:C:2020:170, paragraphs 69, 70 and 86), according to which the General Court is required to examine whether the low degree of similarity of the marks at issue is offset by the identity of the goods covered by those marks, which is the case here. In so doing, the General Court vitiated the judgment under appeal by a failure to state reasons, distorted the clear sense of the evidence and misapplied Article 8(1)(b) of Regulation No 207/2009.

12 As a preliminary point, it must be observed that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).

13 Further, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Court’s Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency and development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14 and the case-law cited).

14 Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify how that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment under appeal which the appellant is calling into question as well as those of the ruling of the Court or the General Court alleged to have been infringed, and secondly, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

15 A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

16 In the present case, it must be stated, in the first place, that, in so far as, by its five arguments put forward in support of its request that the appeal be allowed to proceed, summarised in paragraphs 7 to 11 of the present order, the appellant submits, in general terms, that its appeal must be allowed to proceed in order to ensure the unity and consistency of EU law, or that the judgment under appeal undermines that unity and consistency, it does not explain or, in any event, demonstrate, in a manner that complies with all the requirements set out in paragraph 14 of the present order, how its appeal raises an important issue in relation to those criteria which would justify the appeal being allowed to proceed.

17 In accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked in its appeal, the appeal raises one or more issues that are significant with respect to the unity, consistency and development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal. Accordingly, in order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case and not simply arguments of a general nature (order of 4 June 2020, Société des produits Nestlé v Amigüitos pets & life and EUIPO, C‑97/20 P, not published, EU:C:2020:442, paragraph 18 and the case-law cited).

18 The appellant’s mere claims that the General Court failed to fulfil its obligation to state reasons, distorted the clear sense of the evidence and misapplied Article 8(1)(b) of Regulation No 207/2009, whether taken in isolation or together, are manifestly too general to constitute such proof.

19 In the second place, in so far as the appellant alleges that the General Court failed to have regard to its own case-law and that of the Court of Justice, it must be held that, although the appellant identified, as regards its second, third and fifth arguments, the paragraphs of the judgment under appeal that it calls into question and those of the decisions of the General Court and of the Court of Justice which the General Court failed to have regard to, it did not set out the specific reasons why it considers that the alleged failure to have regard to the case-law or alleged contradictions, even if established, raise a significant issue with respect to the unity, consistency and development of EU law but merely relies on general assertions. It must therefore be held that the appellant did not comply with all the requirements set out in paragraph 14 of the present order.

20 As regards its fourth argument, it must be stated that, in so far as it is alleged to be inconsistent with the General Court’s case-law, it is vitiated by the same deficiencies as those referred to in the preceding paragraph concerning the second, third and fifth arguments and, moreover, the appellant does not even identify the paragraph of the judgment under appeal which it calls into question.

21 In the third place, it should be noted that, in so far as, by its first to fourth arguments, the appellant disputes, respectively, the level of attention of average consumers of bottled water, found by the Fourth Board of Appeal of EUIPO and subsequently by the General Court, the degree of distinctiveness of the VODAVODA bottle found by the General Court, the degree of visual similarity between the signs at issue found in the judgment under appeal and the General Court’s finding that the goods and services covered by the marks at issue are not similar to the extent that they give rise to a likelihood of confusion, it seeks, in reality, to call into question the findings of fact made by the General Court. Such an argument cannot raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 24 June 2021, Olimp laboratories v EUIPO, C‑219/21 P, not published, EU:C:2021:522, paragraph 20 and the case-law cited).

22 In those circumstances, it must be held that the appellant’s request is not capable of establishing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

23 In the light of all of the foregoing, the request that the appeal be allowed to proceed must be refused.

Costs

24 Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

25 Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1. The appeal is not allowed to proceed.

2. Sun Stars & Sons Pte Ltd shall bear its own costs.

Luxembourg, 11 November 2021.

A. Calot Escobar L. Bay Larsen