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

4 May 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‑26/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 January 2021,

Dermavita Co. Ltd, established in Beirut (Lebanon), represented by D. Todorov, advokat,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Allergan Holdings France SAS, established in Courbevoie (France), represented by J. Day, Solicitor, and T. de Haan, avocat,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of R. Silva de Lapuerta, Vice-President of the Court, L. Bay Larsen and C. Toader (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1 By its appeal, Dermavita Co. Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 18 November 2020, Dermavita v EUIPO – Allergan Holdings France (JUVEDERM ULTRA) (T‑643/19, not published, EU:T:2020:549; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment in part of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 July 2019 (Joined Cases R 1655/2018-4 and R 1723/2018-4), concerning revocation proceedings between Dermavita Co. and Allergan Holdings France.

Whether the appeal should 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 the Statute of the Court of Justice 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 Under Article 170a(1) of the Rules of Procedure of the Court of Justice, in the situations referred to in the first paragraph of Article 58a of the Statute of the Court of Justice, 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 alleges, in essence, an error of law as regards the interpretation of Article 15 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark (OJ 2009 L 78, p. 1), and submits that the appeal raises issues that are significant with respect to the unity, consistency and development of EU law, within the meaning of the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union.

7 In that regard, the appellant alleges, first, an error of law in the interpretation of the formulation ‘in connection with the goods and services in respect of which [the trade mark] is registered’ set out in Article 15 of Regulation No 207/2009. It alleges that the General Court failed to take into account, in analysing the nature of the goods in respect of which the mark was registered and when assessing whether the mark had been put to genuine use in connection with those goods, the legal definitions contained in secondary legislation, in particular Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), and Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC (OJ 2017 L 117, p. 1).

8 More specifically, the appellant submits that if the definition of goods set out in the relevant secondary legislation were applied, it would be established that dermal fillers in connection with which the mark at issue was used have no medical purpose and are therefore different from the goods in respect of which that mark was registered, namely ‘pharmaceutical preparations administered by injection for use in moisturising skin and reducing wrinkles’ in Class 5 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. Accordingly, in the appellant’s view, genuine use of the mark in connection with the goods in respect of which the mark is registered cannot be established.

9 Secondly, the appellant submits that the General Court erred in law by failing to specify the criteria to be applied in assessing whether the goods in respect of which the mark was registered are the same as the goods in connection with which the mark is used. It claims that the General Court merely stated, in paragraph 30 of the judgment under appeal, that it is obvious that those goods are the same.

10 According to the appellant, the legal issues raised in support of its appeal are of unquestionable significance with respect to the unity, consistency and development of EU law because they are linked to the principle of legal certainty and the free movement of goods in so far as they relate to the scope of protection of EU trade marks. Those issues also contribute to the development of EU law since they concern the criteria to be applied in assessing, for the purposes of Article 15 of Regulation No 207/2009, whether the goods in respect of which the mark was registered are the same as those in connection with which it has been used, criteria which are likely to apply in all cases concerning the assessment of genuine use of an EU trade mark and which have not yet been analysed in the case-law of the Court of Justice.

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

12 Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice, 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 the Statute of the Court of Justice 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 or 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 26 November 2020, Scorify v EUIPO, C‑418/20 P, not published, EU:C:2020:968, paragraph 18 and the case-law cited).

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 (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, first, the line of argument summarised in paragraphs 7 and 8 above, it should be pointed out that although the appellant has identified an error of law allegedly committed by the General Court, it is neither sufficiently explained nor, in any event, demonstrated by the arguments relied on in support of the appellant’s request that the appeal be allowed to proceed that the issue raised is significant with respect to the unity, consistency or development of EU law.

16 In that regard, it is important to emphasise that, in accordance with the burden of proof which lies with an appellant requesting that an 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 or development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal (order of 3 December 2020, Dermavita v EUIPO, C‑400/20 P, not published, EU:C:2020:997, paragraph 16 and the case-law cited).

17 As the Court held in paragraph 17 of the order of 3 December 2020, Dermavita v EUIPO (C‑400/20 P, not published, EU:C:2020:997), concerning an application for revocation lodged by the applicant against a word mark of the intervener for reasons similar to those at issue in the present appeal, the fact that, in the present case, the General Court did not apply the rules of EU law relied on by the applicant in order to ascertain, for the purposes of Article 15 of Regulation No 207/2009, whether the goods in connection with which the mark at issue was used come within the category of goods in respect of which that mark was registered does not, however, mean that that court generally excludes from its assessment of genuine use of a trade mark, within the meaning of Article 15 of that regulation, the taking into consideration of provisions of EU law concerning both the goods in respect of which that mark was registered and the goods in connection with which it is actually used, for the purposes of ascertaining whether those goods are the same. It follows from paragraph 28 of the judgment under appeal, and in particular from the phrase ‘in principle’ used by the General Court, that the General Court accepts that such provisions may, regard being had to the particular circumstances of the case at hand, be decisive for the classification of those goods.

18 In those circumstances, the appellant has failed to show that the error of law allegedly committed by the General Court raises an issue of law that goes beyond the judgment under appeal.

19 Secondly, as regards the appellant’s line of argument referred to in paragraph 9 above, that line of argument seeks, in essence, to criticise the General Court for failing to fulfil its obligation to state reasons in so far as it failed to specify the criteria which led it to find that the goods in connection with which the mark at issue was used are the same as those in respect of which it was registered.

20 In that regard, while it is true that, as is apparent from the Court’s case-law, failure to state reasons or an inadequate statement of reasons constitutes an error of law which may be relied on in the context of an appeal, the determination as to whether the appeal is allowed to proceed nevertheless remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 16 above, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (order of 3 December 2020, Dermavita v EUIPO, C‑400/20 P, not published, EU:C:2020:997, paragraph 19 and the case-law cited). 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. However, the appellant has not demonstrated to the requisite legal standard how the alleged failure to state reasons in the judgment under appeal raises an issue that is significant with respect to the unity and consistency of EU law.

21 Furthermore, it should be pointed out that although the appellant claims that its appeal raises an issue that is likely to arise in all cases concerning the assessment of genuine use of an EU trade mark, that is simply an argument of a general nature and, consequently, is not such as to justify the appeal being allowed to proceed. Furthermore, the fact that an issue might concern a large number of cases clearly cannot be regarded as relevant for the purpose of establishing the legal significance of the issue for the unity, consistency or development of EU law (see, to that effect, order of 19 December 2019, Hauzenberger v EUIPO, C‑696/19 P, not published, EU:C:2019:1116, paragraph 20).

22 As regards the lack of case-law of the Court concerning the criteria for assessing the nature of goods for the purposes of Article 15 of Regulation No 207/2009, the fact that an issue of law has not been examined by the Court does not thereby mean that that issue is necessarily one of significance with respect to the development of EU law, and the appellant remains bound to demonstrate that significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant with respect to the development of EU law (see, to that effect, order of 19 January 2021, Leinfelder Uhren München v EUIPO, C‑401/20 P, not published, EU:C:2021:31, paragraph 20). However, that significance has not been demonstrated in the present request since the appellant merely makes a general assertion that the issues in question have not yet been subject to review by the Court.

23 In those circumstances, it must be concluded 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.

24 In the light of all the foregoing, it is necessary not to allow the appeal to proceed.

Costs

25 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.

26 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. Dermavita Co. Ltd shall bear its own costs.

Luxembourg, 4 May 2021.

A. Calot Escobar R. Silva de Lapuerta