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

29 April 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‑41/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 January 2021,

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

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

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

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, N. Piçarra and D. Šváby (Rapporteur), 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, Allergan Holdings France asks the Court of Justice to set aside the judgment of the General Court of the European Union of 18 November 2020, Allergan Holdings France v EUIPO – Dermavita (JUVEDERM ULTRA) (T‑664/19, not published, EU:T:2020:547; ‘the judgment under appeal’), by which the General Court dismissed its action for partial annulment 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 Pursuant to the third paragraph of Article 58a of that 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 EU 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, the appellant submits that its appeal raises issues that are significant with respect to the unity, consistency or development of EU law, which, according to the appellant, justify the appeal being allowed to proceed.

7 The appellant claims, in general terms, that the two grounds of appeal go beyond the appeal because there allegedly has been, as is apparent from the recent case-law of the General Court, an increased tendency on the part of the General Court to infringe the rules of procedure and the fundamental rights of the parties since the entry into force of Article 58a of the Statute of the Court of Justice of the European Union.

8 In particular, the appellant submits, in the first place, that the General Court infringed Article 296 TFEU, Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union and Article 117(m) of the Rules of Procedure of the General Court in that it failed to fulfil its obligation to provide a statement of reasons. In that regard, the appellant submits that the General Court did not examine its arguments and the evidence adduced, which demonstrate that the goods, for which its EU trade mark JUVEDERM ULTRA has been used, function as a ‘dermic implant’, and that the General Court concluded arbitrarily and without providing a statement of reasons, in paragraph 19 of the judgment under appeal, that the goods in question are injectable dermal fillers 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 (‘the Nice Agreement’), and cannot, at the same time, constitute an implant in Class 10 of the Nice Agreement.

9 According to the appellant, such an error of law had a direct effect on the outcome of the judgment under appeal. The appellant claims that, had the General Court taken into account the arguments put forward and the evidence adduced by the appellant, it would have concluded that the goods in question also belong to the category of dermic implants in Class 10 of the Nice Agreement.

10 In the second place, the appellant alleges that the General Court infringed Article 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark (OJ 2009 L 78, p. 1). In particular, the appellant submits that, by failing to fulfil its obligation to state the reasons on which the judgment under appeal was based and by failing to take into account the arguments put forward and the evidence adduced by the appellant, the General Court failed to fulfil its obligation to review the lawfulness of the decision of the Board of Appeal of EUIPO.

11 For the purposes of examining the appellant’s request that the appeal be allowed to proceed, it must be recalled, as a preliminary point, 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 26 November 2020, Scorify v EUIPO, C‑418/20 P, not published, EU:C:2020:968, paragraph 17 and the case-law cited).

12 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 Rules of Procedure of the Court, 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 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 Furthermore, 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 19 January 2021, Leinfelder Uhren München v EUIPO, C‑401/20 P, not published, EU:C:2021:31, paragraph 17 and the case-law cited).

16 In the present case, as regards the arguments set out in paragraphs 7 to 10 of the present order, which, being closely linked, can be considered together, the appellant alleges that the General Court, in essence, infringed its obligation to provide a statement of reasons in that it did not examine any of the appellant’s arguments, which were supported by concrete evidence, and concluded arbitrarily in paragraph 19 of the judgment under appeal that, as the goods in question are injectable dermal fillers, they cannot, at the same time, constitute an implant. In the same context, it also alleges that the General Court failed to fulfil its obligation to review the lawfulness of the decision of the Board of Appeal of EUIPO.

17 It should be noted that the appellant identifies two errors of law allegedly made by the General Court, consisting of an infringement of the obligation to provide a statement of reasons and an infringement of the obligation to review the lawfulness of decisions of the Board of Appeal of EUIPO, and submits that those errors are in line with an increased tendency on the part of the General Court, as is apparent from its recent case-law, to infringe procedural rules and fundamental rights since the entry into force of the mechanism whereby the Court of Justice determines whether an appeal should be allowed to proceed. However, it must be noted that, in accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, such arguments are not, in themselves, sufficient to establish that the present appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraphs 13 and 15 of the present order. Moreover, the issue to which the appellant refers of errors allegedly made by the General Court in other cases is not an issue which may be raised in order to justify an appeal being allowed to proceed.

18 For the sake of completeness, it should be noted that, in paragraph 19 of the judgment under appeal, the General Court stated, referring also to EUIPO’s arguments, why it considers that an implant in Class 10 of the Nice Agreement is generally associated with surgery, an element which does not feature, as the appellant submits, in the description of the goods in question. The General Court stated in paragraph 19 of the judgment under appeal that the only function of the goods in question was that of filling wrinkles of the skin and that such a function is specific to pharmaceuticals in Class 5 of the Nice Agreement. In that regard, the General Court noted that the appellant had not established that the goods in question constituted, at the same time, an implant in Class 10 of the Nice Agreement. Thus, contrary to the appellant’s submissions, it cannot be held that the General Court reached its conclusions without providing a statement of reasons in that regard.

19 In those circumstances, it should be held that the request submitted by the appellant 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 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. Allergan Holdings France shall bear its own costs.

Luxembourg, 29 April 2021.

A. Calot Escobar R. Silva de Lapuerta