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

28 January 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‑626/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 November 2020,

Arkadiusz Kaminski, residing in Etobicoke, Ontario (Canada), represented by E. Pijewska, M. Mazurek and W. Trybowski, radcowie prawni,

appellant,

the other parties to the proceedings being:

Polfarmex S.A., established in Kutno (Poland), represented by B. Matusiewicz-Kulig, adwokat,

applicant at first instance,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

composed of R. Silva de Lapuerta, Vice-President, N. Piçarra and K. Jürimäe (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Campos Sánchez-Bordona,

makes the following

Order

1 By his appeal, Mr Arkadiusz Kaminski asks the Court of Justice to set aside the judgment of the General Court of the European Union of 23 September 2020, Polfarmex v EUIPO – Kaminski (SYRENA) (T‑677/19, not published, EU:T:2020:424; ‘the judgment under appeal’) by which the General Court, in revocation proceedings between Polfarmex and Mr Kaminski, annulled the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 July 2019 (Joined Cases R 1861/2018-2 and R 1840/2018-2), in so far as it upheld the registration of EU trade mark No 9262767 in respect of ‘cars’ in Class 12 other than ‘racing cars’.

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 the EUIPO is not to proceed unless the Court of Justice first decides that it should be allowed to do so.

3 In accordance with the third paragraph of Article 58a of the Statute of the Court of Justice, 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 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 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 and is to take the form of a reasoned order.

6 In support of his request that the appeal be allowed to proceed, the appellant relies on four arguments. In the first place, he submits that the question of the General Court’s interpretation of the conditions for distinguishing categories or subcategories of goods in the context of the assessment of the genuine use of a trade mark is of general importance with respect to the development and consistency of the overall practice in relation to EU trade marks, in particular as regards vehicles. The appellant thus claims that the first ground of appeal gives the Court of Justice the opportunity to confirm and develop the specific guidelines as regards the criteria to be applied in that regard.

7 In the second place, as regards the assessment of proof of use for some of the goods under Article 18(1) and Article 58(1)(a) and (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), the appellant complains that the General Court, in paragraphs 58 to 105 and 126 to 128 of the judgment under appeal, made an erroneous distinction between the subcategories ‘racing cars’, ‘sports cars’ and ‘electric cars’, which is contrary to the judgments of 16 July 2020, ACTC v EUIPO (C‑714/18 P, EU:C:2020:573) and of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854). In that context, the appellant submits that the objectives of unity and consistency of EU law justify the setting aside of judgments which conflict with higher-ranking case-law.

8 In the third place, the appellant criticises the General Court for the existence of a contradiction between paragraphs 57 and 125 of the judgment under appeal as regards the question, which the appellant regards as essential, of the distinction between subcategories of goods within the category ‘cars’. In that context, the appellant adds that the General Court failed to fulfil its obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union. The appellant submits that, in view of the objective of consistency of the EU legal order, it is necessary to avoid such contradictions within the EU case-law.

9 In the fourth place, the appellant complains that the General Court infringed the principle of proportionality by upsetting the balance between the interests of the proprietor of the EU trade mark and those of third parties, namely his potential competitors. According to the appellant, the General Court imposes on the proprietor of the EU trade mark the unduly heavy burden of proving use for different types of goods, considering it to be the necessary condition for showing genuine use for the entire category of goods. According to the appellant, such a burden of proof is contrary to the case-law arising from the judgments of 16 July 2020, ACTC v EUIPO (C‑714/18 P, EU:C:2020:573) and of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854).

10 For the purposes of examining the appellant’s request that the appeal be allowed to proceed, it must be observed, as a preliminary point, that it is for the appellant to demonstrate that the issues raised by his 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).

11 Further, as is clear 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 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).

12 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. 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 or order under appeal which the appellant is calling into question as well as those of the ruling of the Court of Justice 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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

13 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).

14 In the present case, with regard, in the first place, to the arguments set out in paragraphs 6, 7 and 9 of the present order, which, being closely linked, can be considered together, the appellant submits that there is a contradiction between paragraphs 58 to 105 of the judgment under appeal, in which the General Court assesses the appellant’s evidence for each of the ‘subcategories’ distinguished, and paragraphs 126 to 128 of that judgment, in which the General Court sets out the reasons why ‘racing cars’ constitute an autonomous subcategory within the category ‘cars’, with the judgments of 16 July 2020, ACTC v EUIPO (C‑714/18 P, EU:C:2020:573) and of 22 October 2020, Ferrari (C‑720/18 and C‑721/18, EU:C:2020:854). In the same context, the appellant also claims that the General Court imposed on a proprietor of an EU trade mark an unduly heavy burden of proof in order to prove use for different types of goods, contrary to the principle of proportionality and the approach followed in those judgments. According to the appellant, the question of the distinction between categories or subcategories of goods is of paramount importance for the development of the overall EU practice in assessing the genuine use of the trade mark.

15 In that connection, as regards the arguments alleging inconsistency between the judgment under appeal and the case-law of the Court of Justice and infringement of the principle of proportionality, it must be pointed out that, in accordance with the burden of proof borne by the party requesting that an appeal be allowed to proceed, such an argument is not, in itself, sufficient to establish that the 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 paragraph 12 of this order. In the present case, although the appellant specifies the paragraphs of the judgment under appeal and those of the rulings of the Court of Justice which have allegedly been infringed, he does not, however, provide sufficient information on the similarity of the situations referred to in the judgments cited capable of establishing the existence of the contradiction relied on (see, to that effect, order of 13 February 2020, Conféderation nationale du Crédit Mutuel v Crédit Mutuel Arkéa, C‑867/19 P, not published, EU:C:2020:103, paragraphs 17 and 18). Moreover, the appellant also does not state the specific reasons for which the inconsistency with the case-law or infringement of the principle of proportionality raises an issue that is significant with respect to the unity, consistency or development of EU law.

16 As regards the claim that the question of the distinction between categories or subcategories of goods is significant with respect to the development of EU law, it must be borne in mind that the appellant must demonstrate that, independently of the issues of law invoked in his 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, his appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and the 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). However, there is no such demonstration in the appellant’s claim. He merely asserts that the Court of Justice is requested to confirm and develop appropriate specific guidelines on the criteria to be applied in the assessment of the genuine use of the trade mark, but does not provide concrete evidence specific to the particular case in order to demonstrate how that issue is significant with respect to the development of EU law.

17 In the second place, by the arguments summarised in paragraph 8 of the present order, the appellant claims that there is a contradiction between, on the one hand, paragraph 57 of the judgment under appeal, where the General Court considers it appropriate to assess the evidence adduced by the appellant in respect of the three subcategories at issue, namely ‘racing cars’, ‘sports cars’ and ‘electric cars’ and, on the other, paragraph 125 of that judgment, in which it held that ‘it is appropriate to assess whether racing cars are capable of constituting a subcategory’. In so doing, the General Court, in the appellant’s submission, first, directly refused to confirm the existence of those three subcategories within the category ‘cars’ and, second, failed to fulfil its obligation to state reasons by expressing two different positions on the same issue.

18 It must be held that, although the appellant thus identifies an error of law allegedly committed by the General Court, he has not sufficiently explained or, in any event, demonstrated how such an error, assuming it to be established, raises an issue that is significant with respect to the unity and consistency of EU law that would justify the appeal being allowed to proceed. Although it is true that, as is clear from the case-law of the Court of Justice, the absence, inadequacy or contradiction in the statement of reasons constitutes an error of law which may be invoked in the context of an appeal, however, the determination as to whether the appeal is allowed to proceed remains subject to specific conditions consisting, for the appellant, in demonstrating, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (see, to that effect, 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). The appellant fails to explain in any way why the alleged contradiction in the reasoning of the judgment under appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

19 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.

20 In the light of all the foregoing considerations, 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 his own costs.

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

1. The appeal is not allowed to proceed.

2. Mr Arkadiusz Kaminski shall bear his own costs.

Luxembourg, 28 January 2021.

A. Calot Escobar R. Silva de Lapuerta