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

5 December 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‑571/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 August 2022,

Unite the Union, established in London (United Kingdom), represented by M. Hommé and B. O’Connor, avocats,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

WWRD Ireland IPCO LLC, established in Wilmington, Delaware (United States),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of L. Bay Larsen, Vice-President of the Court, D. Gratsias (Judge-Rapporteur) and I. Jarukaitis, Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1 By its appeal, Unite the Union asks the Court of Justice to set aside the judgment of the General Court of the European Union of 22 June 2022, Unite the Union v EUIPO – WWRD Ireland (WATERFORD) (T‑739/20, not published, EU:T:2022:381; ‘the judgment under appeal’) by which the General Court dismissed its action for annulment and alteration of the decision of the Second Board of Appeal of EUIPO of 25 September 2020 (Case R 2683/2019‑2), relating to revocation proceedings between WWRD Ireland IPCO LLC and Unite the Union.

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 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 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 the Rules of Procedure, 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 submits that its appeal raises an issue that is significant with respect to the unity, consistency and development of EU law.

7 In that regard, in the first place, the appellant recalls the content of its two grounds of appeal.

8 First, the appellant states that, by its first ground of appeal, which comprises two parts, it claims that the General Court infringed Article 51(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).

9 Secondly, the appellant states that, by the first part of its first ground of appeal, it argues that the General Court, in paragraphs 47 to 49 of the judgment under appeal, erred in finding, on the basis of paragraph 53 of the judgment of 30 March 2006, Emanuel (C‑259/04, EU:C:2006:215), that the conditions for revoking an EU trade mark set out in Article 51(1)(c) of Regulation No 207/2009 were the same as those for registering an EU trade mark laid down in Article 7(1)(g) of that regulation. Contrary to the case-law of the Court of Justice on the interpretation of a provision of EU law (judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 32 and the case-law cited), the General Court disregarded the wording and context of those two provisions, which, in the appellant’s view, show that the EU legislature’s intention was to maintain a clear distinction between the conditions laid down by each of those provisions.

10 Thirdly, the appellant explains that, by the second part of its first ground of appeal, it seeks to demonstrate that, in those same paragraphs of the judgment under appeal, the General Court wrongly relied on paragraph 47 of the judgment of 30 March 2006, Emanuel (C‑259/04, EU:C:2006:215). In that judgment, the Court of Justice applied, without giving an explanation, the ‘actual deceit or a sufficiently serious risk that the consumer would be deceived’ standard to the revocation of an EU trade mark in the context of harmonised EU trade mark law, whereas, originally, that standard had been applied in the judgments of 2 February 1994, Verband Sozialer Wettbewerb (C‑315/92, EU:C:1994:34); of 6 July 1995, Mars, (C‑470/93, EU:C:1995:224) and of 26 November 1996, Graffione, (C‑313/94, EU:C:1996:450) in the context of the interpretation of Articles 34 and 36 TFEU in the light of national laws prohibiting the marketing of goods bearing misleading labels. Consequently, the appellant is asking the Court of Justice to re-examine its case-law to determine whether that standard may be applied to the revocation of an EU trade mark in the context of Regulation No 207/2009.

11 Fourthly, the appellant states that, by its second ground of appeal, it claims that the General Court infringed its right to be heard, now enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. By this ground of appeal, the appellant claims that the General Court, in infringement of that right, rejected the plea which it had relied on in support of its action, without examining the evidence which the appellant had produced before it, based on generally accessible sources and the Waterford Study.

12 In the second place, the appellant submits that its appeal raises an issue that is significant with respect to the development and consistency of EU law, in so far as the General Court relied on case-law of the Court of Justice which wrongly applied a standard intended to ensure the free movement of goods, laid down in the absence of harmonised EU law, in order to interpret the harmonised law on EU trade marks. In doing so, the General Court interpreted EU law in a manner inconsistent with the standard laid down in the judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, EU:C:2022:401, paragraph 32).

13 In that regard, the appellant submits that the legal standard applied in the judgment under appeal derives from a context of ‘negative harmonisation’ governed by the Treaty obligations concerning the prohibition on quantitative restrictions between Member States and was appropriate for assessing whether obstacles to free movement imposed by the Member States were justified, necessary and proportionate. However, according to the appellant, once the EU legislature has adopted harmonised rules, the EU judicature’s interpretation of those rules should evolve in parallel with that evolution in EU legislation. The EU judicature should then apply the standard for interpretation set out in the judgment referred to in paragraph 12 above. The General Court’s interpretation of Article 51(1)(c) of Regulation No 207/2009 in the judgment under appeal raises an issue that is significant with respect to the development and consistency of EU law.

14 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).

15 Moreover, 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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 7 June 2022, Magic Box Int. Toys v EUIPO, C‑194/22 P, not published, EU:C:2022:463, paragraph 14).

16 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22).

17 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 (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16, and of 20 October 2022, Fidelity National Information Services v EUIPO, C‑446/22 P, not published, EU:C:2022:827, paragraph 14).

18 As regards, in the first place, the line of argument in support of the appellant’s first ground of appeal, set out in paragraphs 8 to 10, 12 and 13 above, according to which the General Court misapplied the standard for interpreting EU law derived from the case-law of the Court of Justice, it should be borne in mind that the claim that the General Court infringed the relevant case-law of the Court of Justice 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, coherence or development of EU law. To that end, the appellant must comply with all the requirements set out in paragraph 16 of the present order (see, to that effect, order of 31 March 2022, Henry Cotton’s Brand Management v EUIPO, C‑744/21 P, not published, EU:C:2022:256, paragraph 19 and the case-law cited).

19 In the present case, the Court finds that, although, in its request that the appeal be allowed to proceed, the appellant identifies the case-law allegedly infringed by the judgment under appeal and the paragraphs of that judgment which it is calling into question as well as those of the decisions of the Court of Justice alleged to have been infringed, it does not set out, in a sufficiently clear and precise manner, where the alleged contradiction lies and to what extent that contradiction had an effect on the outcome of the judgment.

20 The appellant merely asserts, in general terms, that the General Court wrongly applied the ‘actual deceit or a sufficiently serious risk that the consumer will be deceived’ standard – which is relevant to the registration of an EU trade mark – to the revocation of such a mark, relying on case-law of the Court of Justice which wrongly applies a standard originally laid down in the absence of harmonised law. In so doing, the appellant does not explain, in a clear and precise manner, how the application of that standard, in itself, contradicts the settled case-law of the Court of Justice in accordance with which, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part (see, to that effect, judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 32 and the case-law cited).

21 In the second place, as regards the appellant’s line of argument in support of its second ground of appeal, set out in paragraph 11 above and relating to the alleged infringement of its right to be heard, the appellant merely alleges that the General Court infringed its right to be heard by failing to examine the evidence adduced by the appellant before it, without even attempting to demonstrate how that alleged infringement raises an issue that is significant with respect to the unity and consistency of EU law.

22 In those circumstances, the Court finds 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.

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

Costs

24 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.

25 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. Unite the Union shall bear its own costs.





Luxembourg, 5 December 2022.

A. Calot Escobar L. Bay Larsen