IP case law Court of Justice

Order of 1 Sep 2021, C-211/21 (12seasons v EUIPO)



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

1 September 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-211/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 31 March 2021,

12seasons GmbH, established in Berlin (Germany), represented by M. Gail, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Société immobilière et mobilière de Montagny, established in Roanne (France), represented by A. Grolée, avocate,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, N. Piçarra and D. Šváby (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, 12seasons GmBH asks the Court of Justice to set aside the judgment of the General Court of the European Union of 20 January 2021, 12seasons v EUIPO – Société immobilière et mobilière de Montagny (BE EDGY BERLIN) (T-329/19, not published, EU:T:2021:22; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 March 2019 (Case R 1522/2018-5), relating to opposition proceedings between Société immobilière et mobilière de Montagny and 12seasons.

 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 the 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 the 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 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 the appeal raises issues that are significant with respect to the unity, consistency and development of EU law, in that the General Court infringed the obligation to take into account the decisions of national offices or national courts when assessing the similarity of signs.

7        By its first argument, the appellant submits that its right to impartial and fair treatment recognised in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) has been infringed.

8        By its second argument, the appellant complains that the General Court misinterpreted Article 8(1)(b) 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). It claims that the General Court, having failed to take into account the decision of the German Patent and Trade Mark Office (‘the decision of the National Office’) of 6 December 2016, reached a different decision on the basis of the same factual situation.

9        Furthermore, according to the appellant, since uniform EU trade mark law coexists on an equal footing with the national trade mark laws of the Member States, the case-law must also be uniform and consistent. Consequently, the General Court should have examined the decision of the National Office which decided the case differently to the Board of Appeal, namely rejecting the opposition that had been filed simultaneously with EUIPO.

10      Lastly, the appellant submits that, since the General Court did not take account of the decision of the National Office, the solution adopted in the judgment under appeal is incorrect. It is apparent from that judgment that the case-law on the handling of the comparison of the signs consisting of several word elements and graphic elements is not uniform and it is therefore necessary for the Court to deliver a judgment on the principles for assessing the similarity between such signs consisting of several words and signs consisting of a single word.

11      In order to examine the appellant’s request that the appeal be allowed to proceed, it should be noted, as a preliminary point, that the appellant submits that Article 58a of the Statute of the Court of Justice of the European Union is inapplicable ratione temporis, without however putting forward concrete arguments specific to the present case in order to prove such inapplicability. Consequently, that argument of the appellant cannot succeed.

12      It 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, that 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).

13      Accordingly, a request that an appeal be allowed to proceed must 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).

14      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). It is for the appellant to provide such a demonstration (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).

15      In the present case, with regard to the arguments summarised in paragraphs 7 to 10 of the present order, it must be stated that, although the appellant identifies errors of law allegedly made by the General Court, it does not explain to the requisite standard or, in any event, show how such errors of law, even if established, raise issues that are significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.

16      In particular, in the first place, as regards the argument set out in paragraph 7 of the present order, the appellant merely alleges infringement of Article 41(1) of the Charter, without providing the slightest indication enabling the Court to understand the nature of the error of law made by the General Court in that regard and what specific issue of law that is significant with respect to the unity, consistency or development of EU law is raised by that argument.

17      In the second place, as regards the line of argument referred to in paragraphs 8 to 10 of the present order, the appellant does not put forward clear and precise arguments specific to the present case in order to show how the error allegedly made by the General Court regarding the failure to take into consideration the decision of the National Office, even if established, raises an issue that is significant with respect to the unity, consistency or development of EU law.

18      In those circumstances, it must be concluded 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.

19      In the light of all of the foregoing, the appeal should not be allowed to proceed.

 Costs

20      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.

21      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.      12seasons GmbH shall bear its own costs.

Luxembourg, 1 September 2021.

A. Calot Escobar

 

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.



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