Order of 15 Jul 2025, C-35/25 (Qozgar v EUIPO)

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

15 July 2025 (*)

( 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-35/25 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 January 2025,

Afaaq Ahmad Qozgar, residing in Thiruvananthapuram (India), represented by L. Pivec, odvetnik,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

L’Oréal, established in Paris (France),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of T. von Danwitz, Vice-President of the Court, N. Jääskinen and A. Arabadjiev (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,

makes the following

Order

1        By his appeal, Afaaq Ahmad Qozgar asks the Court of Justice to set aside the judgment of the General Court of the European Union of 20 November 2024, Qozgar v EUIPO – L’Oréal (CLEOPATRA) (T-482/23, ‘the judgment under appeal’, EU:T:2024:838), by which the General Court dismissed his action for annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 June 2023 (Case R 2509/2022-5), concerning opposition proceedings between L’Oréal and Afaaq Ahmad Qozgar.

 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 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        Article 170a(1) of the Rules of Procedure provides that, 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.

 Arguments of the appellant

6        In support of his request that the appeal be allowed to proceed, the appellant submits that the three grounds of his appeal raise issues that are significant with respect to the unity, consistency or development of EU law.

7        By his first ground of appeal, the appellant complains that the General Court, in paragraphs 20 to 23 of the judgment under appeal, erred in considering that EUIPO was correct to have extended, on its own initiative, the initial time limit by which L’Oréal was to supply proof of use of its mark, without L’Oréal having submitted a reasoned request to extend the time limit before the initial time limit had expired. The appellant claims that the General Court incorrectly applied Article 10(2) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) instead of Article 68 of that delegated regulation.

8        In that connection, the appellant submits that the issue raised in that ground of appeal is significant with respect to the consistency and development of EU law in so far as, in particular, there is no case-law of the Court relating to the distinction between those articles and it is necessary to distinguish situations in which EUIPO may base its decisions on Article 10(2) of Delegated Regulation 2018/625 to decide to extend, on its own initiative, the initial time limit set for the opponent from those in which EUIPO cannot do so without a reasoned request being made by the party concerned, in accordance with Article 68 of the delegated regulation. The same applies to the question whether paragraph 7.2.1.3 of Section 1 of Part C of EUIPO’s examination guidelines may serve as a legal basis for EUIPO to decide unilaterally to extend the time limit relating to proof of use, without the conditions of Article 68 of Delegated Regulation 2018/625 being fulfilled.

9        By his second ground of appeal, the appellant claims that the General Court failed to give reasons for rejecting his argument that L’Oréal intentionally failed to rely on certain goods in support of its opposition, but cited other goods, thereby creating an artificial set of goods in an attempt to circumvent the rules relating to proof of use enshrined in Article 47(2) 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). According to the appellant, the General Court merely found, in paragraph 32 of the judgment under appeal, that EUIPO had been correct to consider that L’Oréal was free to base its opposition only on some of the goods covered by its earlier mark without this implying bad faith or an attempt to circumvent the rules relating to proof of use.

10      In those circumstances, the appellant is of the view that the second ground of his appeal is significant with respect to the unity, consistency or development of EU law and the effective protection of the rights laid down in Article 41 of the Charter of Fundamental Rights of the European Union and in Article 94(1) of Regulation 2017/1001, in particular in that that ground of appeal raises the issue of whether a notice of opposition lodged in order to circumvent the rules relating to proof of use may constitute relevant evidence to establish bad faith and abuse of law by the author of that notice.

11      More specifically, that ground of appeal would enable the Court of Justice to clarify whether the fact that certain goods are not relied on in support of the opposition, even though they are almost identical to the goods covered by the mark applied for, in an attempt to exclude the application of the second sentence of Article 47(2) of Regulation 2017/1001, while relying on certain goods coming within a subcategory similar to a class heading so as to create an artificial set of goods, with the aim of concealing the lack of similarity between the goods in question, is liable to establish bad faith or abuse of law on the part of the opponent. Moreover, the Court could clarify whether an opponent may indeed lodge a notice of opposition against the registration of a mark without proving genuine use of goods which have, intentionally, not been relied on.

12      By his third plea in law, the appellant claims that the General Court erred in law in applying Article 8(1)(b) of Regulation 2017/1001. More specifically, the appellant submits that the General Court incorrectly found, in paragraph 56 of the judgment under appeal, that the goods in question are similar to at least an average degree and, in paragraphs 58 and 59 of the judgment under appeal, that the enhanced distinctiveness of the contested mark was irrelevant.

13      In that regard, the appellant argues that the General Court did not take into consideration its settled case-law flowing from, in particular, the judgments of 11 June 2014, Golam v OHIM – Glaxo Group (METABIOMAX) (T-62/13, EU:T:2014:436, paragraph 41), and of 24 October 2017, Keturi kambariai v EUIPO – Coffee In (coffee inn) (T-202/16, EU:T:2017:750, paragraph 145), according to which only the description of the goods in the trade mark application and the notice of opposition is relevant, or its case-law flowing from the judgment of 1 March 2005, Sergio Rossi v OHIM – Sissi Rossi (SISSI ROSSI) (T-169/03, EU:T:2005:72), relating to the comparison of ladies’ shoes and bags.

14      The appellant is of the view that the third ground of his appeal raises an issue that is significant with respect to the consistency and development of EU law, in particular in that it enables the Court of Justice to determine, first, whether hair removal preparations and soaps and shower gels are similar, simply because those goods are also part of the cosmetics industry, by addressing the relevant factors, the arguments and evidence submitted and case-law and, second, whether the distinctiveness alone of the earlier mark is relevant for the assessment of the likelihood of confusion or whether the distinctiveness of the mark applied for, acquired through use, must be taken into account where evidence and arguments are put forward to that end.

 Findings of the Court

15      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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 20, and of 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 11 and the case-law cited).

16      Furthermore, 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 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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 21, and of 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 12 and the case-law cited).

17      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, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 22, and of 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 13 and the case-law cited).

18      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 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 14 and the case-law cited).

19      In the present case, regarding, in the first place, the line of argument summarised in paragraphs 7 and 8 of the present order concerning the extension of the time limit relating to proof of use of the opponent’s mark, it must be borne in mind that, in accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked in its appeal, the appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply of arguments of a general nature (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraphs 27 and 28 and the case-law cited).

20      Although the appellant identifies the errors of law allegedly committed by the General Court, it does not explain to the requisite standard or, in any event, show how such errors of law, assuming that they are established, would 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. The appellant merely submits that it is necessary to clarify the respective scope of Article 10(2) and Article 68 of Delegated Regulation 2018/625, without setting out specifically why that issue is significant with respect to the unity, consistency or development of EU law.

21      Regarding, in the second place, the line of argument set out in paragraphs 9 to 11 of the present order relating to an alleged infringement by the General Court of its obligation to state reasons, it must be noted that while it is true that an absence of or an inadequate statement of reasons constitutes an error of law which may be invoked in the context of an appeal, the determination as to whether the appeal is allowed to proceed remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 17 of the present order, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 25 January 2024, CEDC International v EUIPO, C-553/23 P, EU:C:2024:93, paragraph 20 and the case-law cited). However, in the present case, the appellant is unable to set out how the interest in reviewing compliance with the obligation to state reasons relating to the alleged strategy to circumvent the rules relating to proof of use enshrined in Article 47(2) of Regulation 2017/1001 goes beyond the scope of the judgment under appeal alone. Consequently, the appellant does not explain to the requisite standard why the General Court’s alleged infringement of the obligation to state reasons raises an issue that is significant with respect to the unity, consistency or development of EU law. This also applies to the appellant’s argument in the second ground of appeal according to which the Court of Justice should rule on the regime applicable to the lodging of a notice of opposition in order to circumvent the rules relating to proof of use.

22      In the third and last place, regarding the line of argument summarised in paragraphs 12 to 14 of the present order, regarding the General Court’s failure to have regard to its own case-law, it must be borne in mind that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the person requesting that an appeal be allowed to proceed, that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law; to that end, the appellant must comply with all the requirements set out in paragraph 17 of the present order (see, to that effect, order of 9 November 2023, Consulta v EUIPO, C-443/23 P, EU:C:2023:859, paragraph 16 and the case-law cited).

23      In that connection, the appellant merely sets out the General Court’s case-law regarding the comparison of goods and the comparison of ladies’ shoes and bags, without, however, providing information on the similarity of the situations referred to in the case-law to which the General Court has allegedly failed to have regard, which would allow the correctness of the contradictions put forward to be established. Moreover, he does not explain, precisely and clearly, why the alleged contradiction between the General Court’s assessments and its own case-law raises an issue that is significant with respect to the unity, consistency or development of EU law.

24      In those circumstances, it must be held that the request submitted by the appellant that the appeal be allowed to proceed 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.

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

 Costs

26      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.

27      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 his own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1.      The appeal is not allowed to proceed.

2.      Afaaq Ahmad Qozgar shall bear his own costs.

Luxembourg, 15 July 2025.

A. Calot Escobar

T. von Danwitz

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.