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

8 December 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 of Justice – 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‑473/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 August 2021,

Franz Schröder GmbH & Co. KG, established in Delbrück (Germany), represented by L. Pechan and N. Fangmann, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

RDS Design ApS, established in Allerød (Denmark),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of L. Bay Larsen, Vice-President of the Court, F. Biltgen (Rapporteur) and N. Wahl, Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1 By its appeal, Franz Schröder GmbH & Co. KG asks the Court of Justice to set aside the judgment of the General Court of 2 June 2021, Franz Schröder v EUIPO – RDS Design (MONTANA) (T‑854/19, EU:T:2021:309) (‘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 14 October 2019 (Case R 2393/2018-4), relating to invalidity proceedings between Franz Schröder and RDS Design.

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 of Justice first decides that it should be allowed to do so.

3 The third paragraph of Article 58a of that statute provides that 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 Article 170a(1) of the Rules of Procedure provides that, in the situations referred to in the first paragraph of Article 58a of that 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 EU law and containing all the information necessary to enable the Court of Justice to rule on that request.

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

6 In support of its request that the appeal be allowed to proceed, the appellant puts forward four arguments by which it submits that the three grounds of appeal raise issues that are significant with respect to the unity, consistency or development of EU law.

7 By its first argument, which relates to the first complaint of the first ground of its appeal, the appellant alleges infringement of fundamental procedural rights in the context of inter partes proceedings and of the principles of fair administrative proceedings set out in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). Such an infringement arises from an erroneous decision taken under Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), by the Board of Appeal of EUIPO, when exercising its discretion. The exceptional consideration of facts submitted late must be justified by higher-ranking interests of the general public, which was not the case in the present proceedings. The present dispute gives the Court of Justice the opportunity to define the principles under which EU adjudicating bodies exercising their discretion may decide, without committing any error, to take into account, exceptionally, facts submitted late in inter partes proceedings.

8 By its second argument, which relates to the second complaint of the first ground of its appeal, the appellant alleges infringement of the second subparagraph of Article 95(1) of Regulation 2017/1001 and of the principle of impartial proceedings, enshrined in Article 41(1) of the Charter, in so far as the Board of Appeal did not confine its examination to the pleas in law and arguments submitted by the parties, but carried out its own fact-finding. The appellant submits that the present appeal provides the Court with the opportunity to specify, in particular the conditions under which the Board of Appeal may carry out an examination of the facts in order to ensure a fair and impartial procedure for the purposes of Article 41 of the Charter.

9 The third argument, which corresponds to the appellant’s second ground of appeal, alleges infringement of Article 94(1) of Regulation 2017/1001 and of the fundamental procedural right to be heard guaranteed by Article 41(2) of the Charter, in that the Board of Appeal carried out its own fact-finding on which it based its decision without giving the parties the opportunity to submit observations before it was adopted. The appellant submits that a decision of the Court of Justice is necessary in order to preserve the unity and consistency of EU law and to ensure a coherent development of EU law. The Court of Justice will have the opportunity to rule on the paramount importance of the fundamental procedural right to be heard in the context of proceedings before the adjudicating bodies of the European Union.

10 By its fourth argument, which relates to the third ground of its appeal, the appellant alleges infringement of Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1). The conflict between the individual interests of the proprietor of a mark and the public interest in using descriptive terms without restriction through trade mark registrations could be resolved by a decision of principle of the Court. Such a decision is necessary for the subsequent development of EU law and for the protection of international trade in goods.

11 As a preliminary point, it should be noted 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).

12 Furthermore, 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 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 (see, in particular orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14, and of 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 13).

13 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 whether 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 or order 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 or order under appeal (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).

14 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).

15 In the present case, as regards, in the first place, the arguments set out in paragraphs 7 and 8 above, it should be noted that only errors of law resulting from the judgment under appeal are capable of raising an issue that is significant with respect to the unity, consistency and development of EU law (order of 24 October 2019, Rietze v EUIPO, C‑599/19 P, not published, EU:C:2019:903, paragraph 14). In that regard, it must be held that, in its request that the appeal be allowed to proceed, which alone is decisive for the decision whether that appeal should be allowed to proceed, the appellant not only fails to indicate which paragraphs of the judgment under appeal are capable of constituting an error of law committed by the General Court, but does not even allege the existence of such an error, since, in fact, it merely challenges the decision of the Board of Appeal.

16 In those circumstances, it must be held that the arguments put forward in the present case, which seek to challenge, not the judgment delivered by the General Court following an application for annulment of a decision, but the decision the annulment of which was sought before the General Court, are not such as to raise a significant issue within the meaning of the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union.

17 In the second place, as regards the argument referred to in paragraph 9 above, it should be pointed out that the appellant merely states, in a general manner, that the Court of Justice would have the opportunity to rule on the paramount importance of the fundamental procedural right to be heard, without claiming the existence of any error of law allegedly committed by the General Court or demonstrating, in accordance with all the requirements set out in paragraph 13 above, that its appeal raises an issue that is significant with respect to the unity, consistency or development of the EU law.

18 In the third place, as regards the argument set out in paragraph 10 above, it should be noted that the evidence put forward by the appellant in the request that the appeal be allowed to proceed is not sufficiently clear and precise to enable the Court to understand the nature of the error of law allegedly committed by the General Court (order of 23 April 2020, Neoperl v EUIPO, C‑14/20 P, not published, EU:C:2020:287, paragraph 13). The appellant merely claims that, in the interests of the development of EU law, the Court should resolve the conflict between the individual interests of the proprietor of a trade mark and the public interest in using descriptive terms without restriction. Such an argument does not satisfy the requirements set out in paragraph 13 above.

19 In those circumstances, it must be held that the 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.

20 In the light of all of the foregoing, the appeal should not be allowed to proceed.

Costs

21 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.

22 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. Franz Schröder GmbH & Co. KG shall bear its own costs.

Luxembourg, 8 December 2021.

A. Calot Escobar L. Bay Larsen