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

22 February 2022 ( )

(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‑679/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 November 2021,

Sony Interactive Entertainment Europe Ltd, established in London (United Kingdom), represented by S. Malynicz QC,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of L. Bay Larsen, Vice-President of the Court, S. Rodin and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,

makes the following

Order

1 By its appeal, Sony Interactive Entertainment Europe Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 1 September 2021, Sony Interactive Entertainment Europe v EUIPO – Vieta Audio (Vita) (T‑561/20, not published, EU:T:2021:524; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 June 2020 (Case R 425/2020-2), concerning revocation proceedings between Vieta Audio and Sony Interactive Entertainment Europe.

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 In accordance with 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 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 is to rule on the request that the appeal be allowed to proceed, 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 submits that its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

7 The appellant claims, in essence, that a product which has a main function may have secondary characteristics which have an independent intended purpose and must be distinguished from characteristics merely ancillary to the main function.

8 In that regard, the appellant relies on the Guidelines 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, in the version applicable in the present case, which state that a finished product which is a multipurpose composite object may be classified in all classes that correspond to any of its functions or intended purposes.

9 According to the appellant, the General Court failed, when examining genuine use of the mark at issue, to distinguish between ancillary and secondary characteristics of multifunctional goods and, therefore, to examine whether genuine use of a mark could be made of secondary components, as opposed to merely ancillary components. Consequently, the General Court departed from the principles established in previous case-law and in accordance with the Nice Classification.

10 Thus, the appellant claims that its appeal raises the issue of determining the criteria for the assessment of genuine use of a mark designating multifunctional goods which have main and secondary characteristics.

11 According to the appellant, that issue is of significance which goes beyond its appeal and beyond the fact that it has not been examined by the Court of Justice. It claims that multifunctional technology is increasingly widespread and, consequently, that issue is likely to be the subject of increasingly frequent litigation which, in the absence of guidance from the Court, will be decided by EUIPO or the national courts.

12 As a preliminary point, it must 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20 and the case-law cited.)

13 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 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 (see, inter alia, order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21 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 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, second, 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22 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, as regards the arguments summarised in paragraphs 7 to 11 of the present order, it should be noted that the appellant does not indicate precisely and clearly the grounds on which the appeal is based, nor does it identify precisely and clearly the provisions of law allegedly infringed by the General Court. In addition, although the appellant relies on errors of law allegedly committed by the General Court, the fact remains that it confines itself to listing those errors and submitting arguments of a general nature, without setting out the specific reasons why such errors, assuming that they are established, raise an issue that is significant with respect to the unity, consistency or development of EU law that would justify allowing the appeal to proceed. Therefore, it must be held that the appellant has failed to comply with all the requirements referred to in paragraph 14 of this order.

17 Furthermore, as regards, more specifically, the appellant’s line of argument summarised in paragraph 9 of the present order, alleging that the General Court failed to have regard to its case-law, it should be noted that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant requesting that an appeal be allowed to proceed, that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. The appellant must comply to that end with all the requirements set out in paragraph 14 of this order. In the present case, the appellant provides no information on the similarity of the situations referred to in the case-law that has been disregarded capable of establishing the existence of the contradiction relied on (order of 13 December 2021, Abitron Germany v EUIPO, C‑589/21 P, not published, EU:C:2021:1012, paragraph 19 and the case-law cited).

18 Lastly, as regards the appellant’s argument that the issue whether the goods for which multifunctional technology is put to genuine use will give rise to increasingly frequent litigation which, in the absence of guidance from the Court of Justice, will be decided by EUIPO or the national courts, it should be noted that, in view of the gaps in the request that the appeal be allowed to proceed observed in the two preceding paragraphs of the present order, that argument is, in any event, ineffective.

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

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

Costs

21 Under Article 137 of the Rules of Procedure, applicable to the 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 party to the proceedings and, therefore, before it 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. Sony Interactive Entertainment Europe Ltd shall bear its own costs.

Luxembourg, 22 February 2022.

A. Calot Escobar L. Bay Larsen