CELEX: 62019CO0577
Language: en
Date: 2019-10-10 00:00:00
Title: Order of the Court of 10 October 2019.#KID-Systeme GmbH v European Union Intellectual Property Office.#Appeal — EU trade mark — Whether appeals may be allowed to proceed — Article 170b of the Court’s Rules of Procedure — Request failing to demonstrate a significant issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed.#Case C-577/19 P.

ORDER OF THE COURT (Chamber determining whether appeals may proceed)
10 October 2019  (*)
(Appeal — EU trade mark — Whether appeals may be allowed to proceed — Article 170b of the Court’s Rules of Procedure — Request failing to demonstrate a significant issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)
In Case C‑577/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 July 2019,

KID-Systeme GmbH, established in Buxtehude (Germany), represented by R. Kunze and G. Würtenberger, Rechtsanwälte and T. Wittmann, Rechtsanwältin,
appellant,
the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Sky Ltd, established in Isleworth (United Kingdom), represented by K. Saliger, Solicitor and P. Roberts QC,
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of R. Silva de Lapuerta, Vice-President of the Court, S. Rodin (Rapporteur) and K. Jürimäe,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, Mr Szpunar,
makes the following

Order

1        By its appeal, KID-Systeme GmbH asks the Court to set aside the judgment of the General Court of the European Union of  16 May 2019, KID-Systeme v EUIPO — Sky (SKYFi) (T‑354/18, not published, EU:T:2019:333), whereby the General Court dismissed its action  seeking the annulment of the  decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of  15 March 2018 (Case R 106/2017-4), in relation to opposition proceedings between Sky and KID-Systeme. 

Whether the appeal should be allowed to proceed

2        Pursuant to 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 Court’s Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency or development of Union 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 of the Court of Justice of the European Union, 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 European Union law and containing all the information necessary to enable the Court to rule on that request.

5        In accordance with Article 170b(3) of those rules, the Court’s decision on the request that the appeal be allowed to proceed is to take the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant claims that  the appeal raises a number of  issues that are  significant  with respect to the unity, consistency or development of EU law, which justify the appeal  being allowed to proceed.

7        In particular, first, the appellant claims that the  first  ground of appeal  raises  an issue that is significant with respect to the unity, consistency or development of EU law  in relation to whether  the General Court may dismiss an action in its entirety  and order an applicant to pay all the costs  even where the General Court  finds that opposition could not properly be based  on an earlier EU trade mark but solely  on an earlier national trade mark that was also relied on. According to  the appellant, by dismissing its action  notwithstanding the error committed by  the Board of Appeal in its reliance on the  earlier EU trade mark, the General Court infringed the principles enshrined in  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), including the  principle of territoriality. 

8        More specifically, the appellant considers  that  the General Court, on the one hand, accepted its  argument that the intervener  before  the General Court  had failed to demonstrate that  it was entitled to bring opposition proceedings before  the Board of Appeal with respect to the  EU trade mark.  On the other hand, the General Court rejected its first plea in law  due to the fact that the intervener was, nonetheless,  entitled to bring opposition proceedings before the Board of Appeal with respect to the national trade mark. It follows, according to  the appellant, that whether  an  opposition is based  on an  EU trade mark or on a  national trade mark becomes a matter of no importance, although  Regulation 2017/1001 makes a clear  distinction between such marks.  For the  General Court to act in that way  is incompatible with the legal framework  created by, on the one hand, Article 8(1)(b) and (2)(a)(i) of  Regulation 2017/1001 and, on the other, Article 8(1)(b) and  (2)(a)(ii), of that regulation.

9        Second, the appellant  claims that the  second  ground of appeal  also raises  an issue that is significant with respect to the unity, consistency or development of EU law in that, by refusing  to stay proceedings  notwithstanding the fact that  invalidity proceedings  brought against the  national trade mark were pending, the General Court  committed  an error capable of being classified as  having the required significance.

10      Third and last, the appellant  claims that the third  ground of appeal, directed against the finding of the General Court that  the appellant  failed to provide  ‘evidence’  in support of its request  that oral proceedings  be held  before the Board of Appeal, raises  the issue  as to what conditions must be met, in accordance with  Article 96  of Regulation 2017/1001, when  oral proceedings are requested before the Board of Appeal. Referring to the  absence of case-law of the Court  on  that point, the appellant  claims that  a clarification of the meaning of that  provision  would serve the interests of  the development of EU law.

11      First, it must be observed  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  16 September 2019, Kiku v CPVO, C‑444/19 P, not published, EU:C:2019:746, paragraph 11).

12      It must also be noted that, as is apparent from  the third paragraph of Article 58a of the Statute of the Court, read together with  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 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, to that effect, order of  30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraphs 12  and 13).

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 (order of  30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraph 14). 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 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 under appeal.

14      A  request that an appeal be allowed to proceed which does not contain  the information  mentioned in the  preceding paragraph  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.

15      In this case, as regards, first, the arguments  relied on in  paragraphs 7  and  8  of the present order, it must be observed that  the appellant  has failed to demonstrate  how  a breach of the principles enshrined  in Regulation 2017/1001, even were it established, would raise an issue  of significance  with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.

16      As regards, second, the arguments relied on in paragraph 9  of the present order, it must be said that  the appellant  makes no mention of any  provision of EU law or case-law  that  the General Court  infringed  when it declined to stay  proceedings, and provides not the slightest indication  of why  the  General Court’s decision to decline to  stay proceedings is such as to  raise an issue of significance  with respect to the unity, consistency or development of EU law.

17      As regards, third, the arguments relied on in paragraph 10  of the present order, it must be said that the appellant  does not explain the nature of the  error of law  that  the General Court  may have committed, specifically, in what way  Article 96  of Regulation 2017/1001 was infringed, and fails to give any indication of the effect  that such an  error had on the  outcome of the  judgment under appeal.

18      Further, the appellant  does no more than assert that  the interest  of the  issue of law  raised by that  ground of appeal  lies in the  development of EU law  and refers to the absence of case-law, while failing however to provide any other indication.

19      It must, however, be stated  that 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 in relation to the development of EU law (order of 30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraph 16).

20      Moreover, as stated in  paragraph 10  of this  order, the appellant  declares  that, by its third ground of  appeal, it challenges the  finding made by  the General Court  that  the appellant  produced no evidence  in support of its request that  oral proceedings be held before the  Board of Appeal. However, since that finding is one of fact, that ground of appeal  cannot raise  an issue that is significant with respect to the unity, consistency or development of EU law.

21      In those circumstances, it must 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.

22      In the light of all the foregoing, the request that the appeal be allowed to proceed must be dismissed.
 Costs

23      Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

24      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.      KID-Systeme GmbH shall bear its own costs.

Luxembourg, 10 October 2019.

A. Calot Escobar
 
R. Silva de Lapuerta

Registrar
 
President of the Chamber determining whether appeals may proceed

*      Language of the case: English.