ORDER OF THE COURT (Chamber determining whether appeals may proceed)
7 November 2023 (*)
(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‑473/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 July 2023,
Bimbo, SA, established in Madrid (Spain), represented by J. Carbonell Callicó, abogado,
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, P.G. Xuereb and A. Kumin (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, T. Ćapeta,
makes the following
Order
1 By its appeal, Bimbo, SA, asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 May 2023, Bimbo v EUIPO – Bottari Europe (BimboBIKE), (T‑509/22, not published, EU:T:2023:281; ‘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 16 June 2022 (Case R 2110/2021-1), concerning opposition proceedings between Bimbo and Bottari Europe Srl.
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 Pursuant to 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 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 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 and is to take the form of a reasoned order.
Arguments of the appellant
6 In support of its request that the appeal be allowed to proceed, the appellant submits three grounds of appeal by which it argues that the General Court infringed Article 8(5) 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).
7 In the first place, the appellant complains that the General Court, in paragraphs 32 to 34 of the judgment under appeal, erred in failing to acknowledge the exceptional reputation and distinctiveness of the mark BIMBO. The appellant claims that that error had a direct impact on the correct application and interpretation of Article 8(5) of Regulation 2017/1001 and, therefore, on the level of protection granted to that mark. According to the appellant, by failing to take into account the substantial scope of the mark’s reputation, the General Court has undermined the reinforced protection which exceptionally well-known marks enjoy under Article 8(5).
8 In the second place, the appellant submits that the General Court, in paragraphs 35 to 38 and 41 to 43 of the judgment under appeal failed to establish a link between the marks at issue, thereby infringing Article 8(5). Moreover, the appellant claims that the General Court’s interpretation risks distorting the intention of the EU legislature and the meaning of that provision by treating well-known marks in the same manner as those which are not. This could have far-reaching consequences for trade mark protection within the European Union.
9 In the third and last place, the appellant argues that, in paragraphs 44 to 56 of the judgment under appeal, the General Court failed to apply the relevant case-law regarding detriment to marks, particularly as far as concerns unfair exploitation and the dilution of distinctive character. In particular, by not acknowledging the potential harm to the reputation and distinctiveness of the mark BIMBO, the General Court, first, failed to ensure compliance with the fundamental principles of trade mark protection and, secondly, equated a well-known mark to an ordinary mark, thus undermining the consistent interpretation of Article 8(5) of Regulation 2017/1001.
10 In that respect, according to the appellant, it is imperative to safeguard the reputation and distinctiveness of the mark BIMBO and to ensure compliance with the fundamental principles of well-known trade mark protection within the European Union.
Findings of the Court
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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18).
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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).
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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20).
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 (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16, and of 26 September 2023, Mordalski v EUIPO, C‑321/23P, EU:C:2023:705, paragraph 13).
15 In the present case, as regards, in the first place, the arguments summarised in paragraph 7 of this order, it must be held that by those arguments, the appellant seeks to call into question the General Court’s assessment of the facts and evidence as regards the reputation of the mark BIMBO. Such arguments, however, cannot demonstrate that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 22 June 2022, Legero Schuhfabrik v EUIPO, C‑152/22 P, EU:C:2022:500, paragraph 21 and the case-law cited).
16 As regards, in the second place, the arguments set out in paragraphs 8 to 10 of this order, it must be noted that, although the appellant invokes an error of law allegedly committed by the General Court, it does not show to the requisite legal standard or, a fortiori, demonstrate, in a manner that complies with all of the requirements set out in paragraph 13 of this order, how its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, which would justify the appeal being allowed to proceed.
17 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 scope of the judgment or order under appeal and, ultimately, that of 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 arguments of a general nature (order of 17 July 2023, Puma v EUIPO, C‑145/23 P, EU:C:2023:597, paragraph 21).
18 In the present case, the appellant’s mere assertions that, due to the alleged errors made by the General Court, first, the intention of the EU legislature and the meaning of Article 8(5) of Regulation 2017/1001 are at risk of being distorted, which could have far-reaching consequences for trade mark protection within the European Union, secondly, the fundamental principles of well-known trade mark protection are infringed, and, thirdly, the consistent interpretation of that provision is undermined, are manifestly too general to constitute such a demonstration.
19 In those circumstances, it must be held that the appellant’s request does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
20 In the light of all the foregoing considerations, the request that the appeal be allowed to proceed must be dismissed.
Costs
21 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.
22 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. Bimbo, SA, shall bear its own costs.
Luxembourg, 7 November 2023.
A. Calot Escobar | | L. Bay Larsen |
Registrar | President of the Chamber determining
| whether appeals may proceed |