Order of 20 Oct 2022, C-446/22 (Fidelity National Information Services v EUIPO), ECLI:EU:C:2022:827.

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

20 October 2022 (*)

(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-446/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 July 2022,

Fidelity National Information Services, Inc., established in Jacksonville, Florida (United States), represented by P. Wilhelm, avocat,

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 L. Bay Larsen, Vice-President of the Court, N. Jääskinen and M. Safjan (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Fidelity National Information Services, Inc., asks the Court of Justice to set aside the judgment of the General Court of the European Union of 4 May 2022, Fidelity National Information Services v EUIPO – IFIS (FIS) (T-237/21, not published, EU:T:2022:267; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 February 2021 (Case R 1460/2020-1), relating to opposition proceedings between Banca IFIS and Fidelity National Information Services.

 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        The third paragraph of Article 58a of the Statute of the Court of Justice of the European Union provides that 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 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 its appeal raises issues that are significant with respect to the unity, consistency or development of EU law. In that regard, it puts forward four grounds of appeal, alleging infringement of Article 8(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

7        By its first ground of appeal, the appellant submits that the General Court defined the average consumer in a manner contrary to EU law, in particular the rules on public procurement, in that it failed to take into account a specific purchasing pattern relating to the goods and services linked to the marks at issue.

8        By its second ground of appeal, the appellant complains that the General Court erred in law in its determination of the relevant public. By stating, in paragraph 19 of the judgment under appeal, that the relevant public for the purposes of the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for, the General Court disregarded its own case-law, resulting, inter alia, from the judgment of 14 July 2005, Reckitt Benckiser (España) v OHIM – Aladin (ALADIN) (T-126/03, EU:T:2005:288, paragraph 81), according to which the goods to which the trade mark application relates must be regarded as directed solely at the members of staff of the financial institutions responsible for the purchasing of specialised software.

9        By its third ground of appeal, the appellant submits that the General Court assessed whether the goods or services at issue are complementary in a manner contrary to its own case-law, in so far as it held that the goods and services at issue are complementary. In particular, the General Court disregarded its case-law, resulting, inter alia, from the judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel) (T-316/07, EU:T:2009:14, paragraphs 54 to 57), according to which goods intended for different publics cannot be complementary.

10      By its fourth and final ground of appeal, the appellant alleges that the General Court erred in its global assessment of the likelihood of confusion as a result of the cumulative effect of the errors of law set out in paragraphs 7 to 9 of the present order, relating in particular to the determination of the relevant public and the comparison of the goods and services at issue.

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 (see, to that effect, order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 20 and the case-law cited).

12      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 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 (see, to that effect, orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 21, and of 7 June 2022, Magic Box Int. Toys v EUIPO, C-194/22 P, not published, EU:C:2022:463, paragraph 14).

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. 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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 22 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 6 July 2022, Calrose Rice v EUIPO, C-253/22 P, not published, EU:C:2022:546, paragraph 14 and the case-law cited).

15      In the present case, with regard, in the first place, to the arguments set out in paragraphs 7 and 10 of the present order, relating to the infringement of Article 8(1)(b) of Regulation No 207/2009 and, in particular, the errors of law allegedly committed by the General Court in defining the average consumer and the likelihood of confusion, it should be noted that the appellant does not explain to the requisite standard or, in any event, show how such errors of law, assuming that they are established, raise issues that are significant with respect to the unity, consistency or development of EU law that would justify allowing the appeal to proceed (see, to that effect, order of 17 June 2022, Lück v EUIPO, C-145/22 P, not published, EU:C:2022:487, paragraph 17).

16      In the second place, as regards the appellant’s line of argument relied on in paragraphs 8 and 9 of the present order, alleging that the General Court failed to have regard to its case-law, it should be noted that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant 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. The appellant must comply to that end with all the requirements set out in paragraph 14 of this order. In the present case, the appellant provides no information on the similarity of the situations referred to in the case-law that has been disregarded capable of establishing the existence of the contradiction relied on (order of 22 February 2022, Sony Interactive Entertainment Europe v EUIPO, C-679/21 P, not published, EU:C:2022:109, paragraph 17 and the case-law cited).

17      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.

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

 Costs

19      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.

20      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it 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.      Fidelity National Information Services, Inc., shall bear its own costs.

Luxembourg, 20 October 2022.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.