CJEU Order C-46/25 Butzkies-Schiemann v EUIPO 17 Jun 2025

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

17 June 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-46/25 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 January 2025,

Sven Butzkies-Schiemann, residing in Büdelsdorf (Germany), represented by H.J. Haeseler and T. Honka, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

U.S. Corrosion Technologies LLC, established in Garland (United States),

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, D. Spielmann,

makes the following

Order

1 By his appeal, Mr Sven Butzkies-Schiemann seeks to have set aside the judgment of the General Court of the European Union of 13 November 2024, Butzkies-Schiemann v EUIPO – U.S. Corrosion Technologies (CorrosionX) (T-1127/23, ‘the judgment under appeal’, EU:T:2024:812), by which the General Court dismissed his action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 September 2023 (Case R 1795/2022-1), relating to invalidity proceedings between U.S. Corrosion Technologies LLC and Mr Butzkies-Schiemann.

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 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 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 those rules 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 those rules, 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 his appeal raises several issues that are significant with respect to the unity, consistency or development of EU law.

7 In the first place, the appellant submits that it is necessary for the Court to clarify whether the two-month period for the defendant to submit its observations in response to the appellant’s statement of grounds, as provided for in the first sentence of Article 24(1) 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), constitutes a statutory time limit which may be extended only on the condition expressly referred to in the second sentence of Article 24(1), relating to the existence of exceptional circumstances. According to the appellant, that issue is significant given that it concerns all appeal proceedings before the Boards of Appeal of EUIPO.

8 In particular, the appellant criticises the General Court for having endorsed, in paragraphs 19 to 21 of the judgment under appeal, the Board of Appeal’s finding relating to the taking into account of the observations of the intervener at first instance filed after the expiry of the two-month period laid down in Article 24(1) of Delegated Regulation 2018/625, even though the condition for an extension of that period, as referred to in the preceding paragraph of the present order, was not satisfied. Accordingly, by accepting that the period laid down in Article 24(1) of Delegated Regulation 2018/625 could be extended, notwithstanding the fact that there was no legal basis for that extension, the General Court held that that period was not a statutory time limit.

9 According to the appellant, that period, comparable by nature to that laid down in Article 68(1) 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), constitutes, on the contrary, a statutory time limit which may be extended only in compliance with the condition relating to the existence of exceptional circumstances, in accordance with the second sentence of Article 24(1) of Delegated Regulation 2018/625.

10 In support of that claim, the appellant submits, first of all, that it would be contrary to the concept of ‘procedural fairness’ for the defendant to be able to obtain an extension of the period for lodging its observations in response to the appellant’s statement of grounds, even though the condition for the extension of that period is not satisfied. Next, the appellant claims that the period laid down in Article 24(1) of Delegated Regulation 2018/625 is also applicable when a cross appeal is lodged, pursuant to Article 25(1) of that regulation. Lastly, the classification of that period as a statutory time limit also follows from Article 17(1) and (2) of Decision No 2020-1 of 27 February 2020 of the Presidium of the Boards of Appeal on the Rules of Procedure before the Boards of Appeal, according to which the Registrar is to invite the defendant to file its observations on the admissibility of the response within one month where those observations are filed outside the time limits laid down in Article 24(1) of Delegated Regulation 2018/625. On this last point, the appellant submits that clarification by the Court of Justice would make it possible to avoid a contradiction between the judgment under appeal, on the one hand, and Article 17(1) and (2), on the other.

11 In the second place, the appellant submits that the Court should clarify whether the fact that a body of evidence, submitted by a party seeking to rely on Article 52(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), has been falsified or manipulated is capable of calling into question the entirety of the evidence adduced by that party. That issue is significant in that the authenticity of procedural documents submitted in the context of court proceedings is a fundamental requirement to which the parties are subject.

12 More specifically, the appellant criticises the General Court for having held, in paragraph 47 of the judgment under appeal, that the evidence does not have to be assessed in the light of its authenticity or truthfulness, even if its reliability is called into question, where the decision finding that the applicant was acting in bad faith when he filed the application for registration of an EU trade mark is not based on that specific set of evidence. That position is contrary to the decision-making practice of the Boards of Appeal of EUIPO, according to which, where the Board of Appeal has doubts as to a specific set of evidence, those doubts may be capable of calling into question all the evidence submitted. In that regard, the appellant points out that, in the present case, the doubts as to a specific set of evidence were not negligible.

13 In the third and last place, the appellant submits that his appeal raises the issue of what period may be taken into consideration in relation to facts and evidence dated prior to the filing of the application for registration of an EU trade mark for the purposes of interpreting the intention of the proprietor of the mark at the relevant date of that filing. According to the appellant, the Court should harmonise its case-law in so far as it follows, first, that facts and evidence dated prior to the filing of an EU trade mark may be taken into consideration for the purposes of interpreting the proprietor’s intention when filing that mark and, second, that the date of filing remains the relevant date for determining whether the proprietor of that mark was acting in bad faith, within the meaning of Article 52(1)(b) of Regulation No 207/2009. In the absence of such harmonisation, facts and evidence dating back several decades before the date of filing of the contested mark could be taken into account in that regard, as the General Court did, in the present case, by taking into account, in paragraph 75 of the judgment under appeal, facts which occurred before the registration of the German national mark of which the appellant is the proprietor and which date back to a period of between 11 and 25 years before the filing of the contested mark.

Findings of the Court

14 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 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 11 and the case-law cited).

15 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 (order of 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 12 and the case-law cited).

16 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 6 March 2025, Dekoback v EUIPO, C-775/24 P, EU:C:2025:169, paragraph 13 and the case-law cited).

17 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).

18 In the present case, it should be noted that, although, by his arguments as summarised in paragraphs 6 to 13 of the present order, the appellant identifies errors allegedly committed by the General Court as regards the interpretation and application of EU law, he does not demonstrate, to the requisite legal standard, how those errors, assuming they are established, raise an issue that is significant with respect to the unity, consistency or development of EU law.

19 First, as regards the arguments set out in paragraphs 7 to 10 of the present order, relating to the taking into account of the observations in response of the intervener at first instance lodged before the Board of Appeal, it should be noted that, although the appellant explains the nature of the error of law allegedly committed by the General Court in paragraph 21 of the judgment under appeal, the fact remains that he does not specifically indicate the impact that the error relied on, assuming it were established, would have on the outcome of the dispute. In that regard, the appellant merely challenges the General Court’s reasoning, set out in paragraphs 19 to 21 of the judgment under appeal, without, however, calling into question paragraph 22 of that judgment, by which that court concluded that ‘although the intervener [at first instance] did indeed benefit from an additional period to file its response despite the lack of exceptional circumstances justifying it, it cannot be claimed that this caused the [appellant] any harm’ and that, ‘assuming that the intervener [at first instance] submitted additional evidence to that which it would have been able to produce within the statutory two-month period, it must be noted that, pursuant to Article 26(1) of Delegated Regulation 2018/625, it was open to the [appellant] to seek authorisation to supplement the statement of grounds with a reply’, which he did not, in any event, do.

20 Moreover, it should be pointed out that, although the appellant claims that his appeal raises an issue that is likely to arise in all appeal proceedings before the Boards of Appeal of EUIPO, it must nevertheless be stated that that is simply an argument of a general nature which, in accordance with the case-law referred to in paragraph 16 of the present order, is not such as to justify the appeal being allowed to proceed, and, moreover, that the fact that an issue might concern a large number of cases cannot be regarded as necessarily relevant or, in any event, sufficient to establish that the appeal is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 4 May 2021, Dermavita v EUIPO, C-26/21 P, EU:C:2021:355, paragraph 21 and the case-law cited).

21 Accordingly, that line of argument put forward by the appellant does not meet the requirements referred to in paragraph 16 of the present order.

22 Second, as regards the line of argument summarised in paragraphs 11 and 12 of the present order, relating to the scope of the assessment of the evidence alleged to have been falsified or manipulated, it is sufficient to note that the appellant does not set out, with sufficient clarity and precision, the specific reasons why the General Court’s allegedly erroneous findings, set out in paragraph 47 of the judgment under appeal, raise an issue that is significant with respect to the unity, consistency or development of EU law.

23 As regards, in particular, the argument alleging that the General Court failed to have regard to EUIPO’s decision-making practice, it must be borne in mind that that the legality of the decisions of the Boards of Appeal of EUIPO must be assessed solely on the basis of Regulation 2017/1001, as interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice of EUIPO’s adjudicating bodies (order of 7 February 2024, Groz-Beckert v EUIPO, C-691/23 P, EU:C:2024:166, paragraph 15 and the case-law cited). Accordingly, that alleged failure cannot raise an issue that is significant with respect to the unity, consistency or development of EU law.

24 Third, as regards the line of argument set out in paragraph 13 of the present order, relating, in essence, to the period to be taken into account for the purposes of assessing the intention of the proprietor of an EU trade mark on the date of filing its application for registration, it must be held that the explanations provided by the appellant are not sufficiently clear and precise to enable the Court to understand how the requisite harmonisation of the case-law of the Court in that regard, which, moreover, has not been identified in any way, would be capable of demonstrating that his arguments raise an issue that is significant with respect to the unity, consistency or development of EU law.

25 It must therefore be held that the appellant has failed to comply with all the requirements set out in paragraph 16 of the present order.

26 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.

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

Costs

28 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.

29 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. Mr Sven Butzkies-Schiemann shall bear his own costs.

Luxembourg, 17 June 2025.

A. Calot Escobar

T. von Danwitz

Registrar

President of the Chamber determining whether appeals may proceed

* Language of the case: English.

Order of 17 Jun 2025, C-46/25 (Butzkies-Schiemann v EUIPO)