CELEX: 62019CO0582
Language: en
Date: 2019-10-22 00:00:00
Title: Order of the Court (Chamber determining whether appeals may proceed) of 22 October 2019.#Holzer y Cia, SA de CV v European Union Intellectual Property Office.#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 the significance of an issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed).#Case C-582/19 P.

ORDER OF THE COURT (Chamber determining whether appeals may proceed)
22 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‑582/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 July 2019,

Holzer y Cia, SA de CV, established in Mexico City (Mexico), represented by N.A. Fernández Fernández-Pacheco, abogado,
appellant,
the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Annco, Inc., established in New York, New York (United States), represented by D. Rose, J. Warner and  E. Preston, Solicitors, and P. Roberts, QC,
intervener at first instance,
composed of R. Silva de Lapuerta, Vice-President of the Court, C. Lycourgos and E. Juhász, Judge-Rapporteur,
Advocate General:  M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General,
makes the following

Order

1        By its appeal, Holzer y Cia, SA de CV, seeks to have set aside the judgment of the General Court of the European Union of 23 May 2019, Holzer y Cia v EUIPO — Annco (ANN TAYLOR and AT ANN TAYLOR) (T‑3/18 and T‑4/18, EU:T:2019:357), by which the General Court dismissed its two actions for annulment of the decisions of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 November 2017 and 8 November 2017 (Cases R 2370/2016-2 and R 2371/2016-2), relating to two sets of invalidity proceedings between Annco and Holzer y Cia.
 The request that the appeal 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        The third paragraph of Article 58a of that Statute provides that 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 EU law.

4        Under Article 170a(1) of the Rules of Procedure, 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(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 submits that the appeal raises two issues which are significant with respect to the unity, consistency and development of EU law which justify the appeal being allowed to proceed.

7        In this respect, the appellant submits, in the first place, that the General Court disregarded the case-law of the Court of Justice and the General Court relating to the bad faith of an applicant for a trade mark. Specifically, the appellant claims that the General Court failed to take into account the relevant criteria for the purposes of the assessment of bad faith, in particular those which have been recognised in the case-law of the Court of Justice (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 53).

8        In the second place, the appellant claims that the General Court incorrectly granted probative value to documents which were invalid and flawed, namely a confidential email and statements made under oath by the lawyers representing the interests of the intervener. The appellant submits that in doing so, the General Court infringed the case-law of the Court of Justice according to which correspondence between lawyers and clients is strictly confidential (judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512).

9        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 16 September 2019, Kiku v CPVO, C‑444/19 P, not published, EU:C:2019:746, paragraph 11).

10      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 (order of 10 October 2019, KID-Système v EUIPO, C‑577/19 P, not published, EU:C:2019:854, paragraph 12 and the case-law cited).

11      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 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 (order of 10 October 2019, KID-Système v EUIPO, C‑577/19 P, not published, EU:C:2019:854, paragraph 13 and the case-law cited).

12      In addition, it must be pointed out, as the Court has already held, that the claim that the General Court departed from the Court of Justice’s case-law in a given order or judgment is not, in itself, sufficient to establish, in accordance with the evidential burden which is borne by the party requesting that an appeal be allowed to proceed, that that appeal raises an issue which is significant with respect to the unity, consistency or development of EU law. For that purpose, the party requesting that its appeal be allowed to proceed must set out, succinctly but clearly and precisely, first, where the conflict which it is invoking lies, identifying both the paragraphs of the judgment or order under appeal which it is calling into question and those of the decision of the Court of Justice which were disregarded, and, second, the specific reasons for which it takes the view that such a conflict  raises an issue which is significant with respect to the unity, consistency or development of EU law (order of 7 October 2019, L’Oréal v EUIPO, C‑586/19 P, not published, EU:C:2019:845, paragraph 16).

13      Therefore, a request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraphs 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 (see order of 10 October 2019, KID-Système v EUIPO, C‑577/19 P, not published, EU:C:2019:854, paragraph 14).

14      In the present case, the request submitted by the appellant that its appeal be allowed to proceed does not state the specific grounds upon which the appeal is based, so therefore the Court is neither in a position to identify the pleas in law or parts of the appeal to which the response must relate in the event that the appeal is allowed to proceed, nor, accordingly, to carry out the review provided for in Article 170b(4) of those Rules.

15      Moreover, the appellant merely asserts that the General Court failed to comply with the case-law of the Court of Justice, specifically mentioning the judgments of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361) and of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission  (C‑550/07 P, EU:C:2010:512), but without observing all the requirements referred to in paragraph 12 above.

16      In those circumstances, it must be concluded that the arguments put forward by the appellant in support of its request that its appeal be allowed to proceed are not capable of establishing that that appeal raises issues that are significant with respect to the unity, consistency or development of EU law.

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

18      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.

19      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.      Holzer y Cia, SA de CV, shall bear its own costs.

Luxembourg, 22 October 2019.

A. Calot Escobar
 
R. Silva de Lapuerta

Registrar
 
President of the Chamber determining whether appeals may proceed

*      Language of the case: English.