Order of 29 Oct 2020, C-304/20 (Kerry Luxembourg v EUIPO), ECLI:EU:C:2020:886 .

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

29 October 2020 (*)

(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-304/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 July 2020,

Kerry Luxembourg Sàrl, established in Luxembourg (Luxembourg), represented by A. von Mühlendahl and H. Hartwig, Rechtsanwälte,

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 R. Silva de Lapuerta, Vice-President of the Court, T. von Danwitz (Rapporteur) and P.G. Xuereb, Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Kerry Luxembourg Sàrl asks the Court of Justice to set aside the judgment of the General Court of the European Union of 29 April 2020, Kerry Luxembourg v EUIPO – Döhler (TasteSense By Kerry) (T-108/19, not published, EU:T:2020:161; ‘the judgment under appeal’), by which the General Court dismissed Kerry Luxembourg’s action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 November 2018 (Case R 1179/2018-2), concerning opposition proceedings between Döhler GmbH and Kerry Luxembourg (‘the decision at issue’).

 The re      quest 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 those rules, 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’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible, and is to take the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant relies, in essence, on three arguments, by which it submits that its appeal raises issues that are significant with respect to the unity, consistency and development of EU law, which justify the appeal being allowed to proceed.

7        By its first argument, the appellant submits that its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law inasmuch as the General Court vitiated the procedure before it by refusing to admit evidence from publicly available sources showing the degree of knowledge of English by the public in Poland and in Spain. More particularly, the appellant is of the view that knowledge of languages is a matter of fact, which may be established by evidence, but that in the present case it is a ‘well-known’ fact, so that the General Court was not entitled to reject evidence from publicly available sources on the sole ground that such evidence had not been presented in the context of the proceedings before EUIPO.

8        By its second argument, the appellant submits that the General Court infringed Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), by committing errors of law in its interpretation of the list of goods for which registration of the mark which was the subject of the opposition proceedings before EUIPO had been sought, and, thus, in its determination of the relevant public. According to the appellant, the relevant public consists exclusively of professionals, that is to say, of a specialist public, and not also of the general public as the General Court stated in paragraph 50 of the judgment under appeal. The appellant claims that the issue of the interpretation of the list of goods, which has an impact on the definition of the relevant public, is an issue of law that is significant with respect to the unity, consistency and development of EU law.

9        By its third argument, the appellant submits that the appeal raises an issue that is significant with respect to the unity, consistency and development of EU law inasmuch as the General Court relied on incorrect legal criteria to confirm the conclusion of the decision at issue relating to the existence of a likelihood of confusion. The error consists, first, of the assertion that the likelihood of confusion means a likelihood of confusion between the signs. Second, by confirming the conclusion of the decision at issue, according to which a likelihood of confusion cannot be ‘ruled out’ or ‘safely ruled out’, the General Court departed from the case-law of the Court of Justice. The appellant states that EUIPO and the General Court must positively establish the existence of a likelihood of confusion.

10      Indistinctly, the appellant claims that the issues of law concerning the interpretation and application of Article 8(1)(b) of Regulation No 207/2009 set out in the three arguments listed above arise in a large number of cases, so that a decision of the Court of Justice is necessary to preserve the unity and consistency of EU law and to ensure the consistent development of EU law.

11      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 (orders of 16 September 2019, Kiku v CPVO, C-444/19 P, not published, EU:C:2019:746, paragraph 11, and of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13).

12      Furthermore, as is clear from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read in conjunction 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 (order of 3 September 2020, Gamma-A v EUIPO, C-199/20 P, not published, EU:C:2020:662, paragraph 10 and the case-law cited).

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 with respect 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).

15      In the present case, first of all, the argument that the appellant develops indistinctly in the context of its three arguments, namely that the large number of cases raising issues that are similar to those raised in the appeal makes a decision of the Court of Justice necessary in order to preserve the unity and consistency of EU law and to ensure the consistent development of EU law with a view to the application and interpretation of Article 8(1)(b) of Regulation No 207/2009, must be rejected. The fact that an issue could concern a large number of cases can clearly not be regarded as relevant for the purpose of establishing the legal significance of the issue with respect to the unity, consistency or development of EU law (see, to that effect, order of 19 December 2019, Hauzenberger v EUIPO, C-696/19 P, not published, EU:C:2019:1116, paragraph 20).

16      Next, as regards the appellant’s first argument, summarised in paragraph 7 of the present order, according to which the General Court erred in law by refusing to admit evidence from publicly available sources showing the degree of knowledge of English by the public in Poland and in Spain, it is important to emphasise that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such an argument is not, in itself, sufficient to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraph 13 of the present order.

17      In the present case, the appellant does not set out the concrete reasons why the refusal to examine evidence which was not submitted in the context of the administrative procedure raises an issue that is significant with respect to the unity, consistency or development of EU law. In that regard, it must be noted, in particular, that, in its order of 17 July 2014, MOL v OHIM (C-468/13 P, not published, EU:C:2014:2116, paragraph 42), the Court of Justice has already ruled on the issue referred to in the appellant’s first argument, namely the issue of whether an item of evidence which allegedly concerns well-known facts can be produced before the General Court even though it has not been previously presented before a body such as that in question. The appellant does not state the reasons why, given that case-law of the Court of Justice, the first argument is capable of constituting an issue that is significant with respect to the unity, consistency or development of EU law.

18      Furthermore, as regards the second argument put forward by the appellant, set out in paragraph 8 of the present order, according to which the General Court erred in its interpretation of the list of goods for which registration of the mark was sought, which had an impact on the definition of the relevant public, it must be noted that the appellant seeks, in essence, to call into question the findings of the General Court relating to the characteristics of the relevant public. It follows from settled case-law that such findings are findings of fact in respect of which the General Court has exclusive jurisdiction (see, inter alia, judgment of 25 July 2018, QuaMa Quality Management v EUIPO, C-139/17 P, not published, EU:C:2018:608, paragraph 55 and the case-law cited). Therefore, such an argument cannot raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 10 October 2019, KID-Systeme v EUIPO, C-577/19 P, not published, EU:C:2019:854, paragraph 20).

19      Lastly, as regards the appellant’s third argument, set out in paragraph 9 of the present order, according to which the General Court erred in law when it confirmed the conclusions of the decision at issue concerning the existence of a likelihood of confusion, first, it must be noted that the appellant’s assertion that the General Court considered a likelihood of confusion between the signs to be sufficient for a finding that there is a likelihood of confusion between the marks at issue is based on a manifestly incorrect reading of the judgment under appeal. The General Court carried out, in paragraphs 73 to 85 of the judgment under appeal, its own global assessment of the likelihood of confusion, in order to conclude from that assessment, in paragraph 84 of the judgment under appeal, that due to the fact that the signs at issue were similar for the purposes of Article 8(1)(b) of Regulation No 207/2009 and that the goods at issue were identical or highly similar, there was a likelihood of confusion.

20      Second, as regards the assertion that the General Court departed from the case-law of the Court of Justice, it is important to emphasise that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such an argument is not, in itself, sufficient to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraph 13 of the present order (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17 and the case-law cited). The appellant, which does not specify the allegedly infringed case-law of the Court of Justice, has not complied with all those requirements.

21      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.

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

 Costs

23      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.

24      In this instance, since the present order was adopted before the appeal was served on the other party to the proceedings and therefore before the latter 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.      Kerry Luxembourg Sàrl shall bear its own costs.

Luxembourg, 29 October 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.