ORDER OF THE PRESIDENT OF THE COURT
27 April 2023 (*)
(Appeal – Intervention – Second paragraph of Article 40 of the Statute of the Court of Justice of the European Union – Interest in the result of the case – EU trade mark – Opposition proceedings – Rejection of the opposition – Refusal to take into account earlier rights protected in the United Kingdom – Relevant stage of the procedure for assessing the existence of a relative ground for refusal – Association of proprietors of trade marks and professionals in that field with the purpose of promoting trade mark law – Allowed)
In Case C‑337/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 May 2022,
European Union Intellectual Property Office (EUIPO), represented by D. Gája, D. Hanf, E. Markakis and V. Ruzek, acting as Agents,
appellant,
supported by:
Federal Republic of Germany, represented by J. Möller, J. Heitz and M. Hellmann, acting as Agents,
intervener in the appeal,
the other party to the proceedings being:
Nowhere Co. Ltd, established in Tokyo (Japan), represented by R. Kunze, Rechtsanwalt,
applicant at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal from the Judge-Rapporteur, D. Gratsias,
after hearing the Advocate General, T. Ćapeta,
makes the following
Order
1 By its appeal, the European Union Intellectual Property Office (EUIPO) seeks to have set aside the judgment of the General Court of the European Union of 16 March 2022, Nowhere v EUIPO – Ye (APE TEES) (T‑281/21, EU:T:2022:139; ‘the judgment under appeal’), by which the General Court, first, annulled the decision of the Second Board of Appeal of EUIPO of 10 February 2021 (Case R 2474/2017-2), relating to opposition proceedings between Nowhere Co. Ltd and Mr Ye, and, second, dismissed the action brought by Nowhere as to the remainder.
2 By document lodged at the Court Registry on 22 February 2023, the Federal Republic of Germany applied for leave to intervene in Case C‑337/22 P in support of the form of order sought by EUIPO. By decision of 21 March 2023, the President of the Court of Justice granted that application to intervene.
3 By document lodged at the Court Registry on 27 February 2023, the International Trademark Association (INTA) applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Article 129 of the Rules of Procedure of the Court of Justice, for leave to intervene in Case C‑337/22 P in support of the form of order sought by EUIPO.
4 By letter lodged at the Court Registry on 1 March 2023, EUIPO informed the Court that it had no comments to make on INTA’s application to intervene.
5 By letter lodged on 16 March 2023, Nowhere stated that it was leaving it to the Court’s discretion whether to grant INTA’s application to intervene.
The application to intervene
6 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States, of the one part, and such institutions, of the other part, may intervene in that case.
7 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or arguments raised. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (order of the President of the Court of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 6 and the case-law cited).
8 In that regard, it must, in particular, be ascertained whether the applicant for leave to intervene is directly affected by the contested measure and whether its interest in the result of the case is established. In principle, an interest in the result of the case can be considered to be sufficiently direct only to the extent to which that result is likely to alter the legal position of the person seeking leave to intervene (order of the President of the Court of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 7 and the case-law cited).
9 However, it is settled case-law of the Court that a representative professional association, whose objective is to protect the interests of its members, may be granted leave to intervene where the case raises questions of principle which are liable to affect those interests (see, inter alia, order of the President of the Court of 12 January 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, not published, EU:C:2018:16, paragraph 6 and the case-law cited). Therefore, the requirement that such an association has a direct, existing interest in the result of a case in which it wishes to intervene must be found to be fulfilled where that association establishes that it is in such a situation, irrespective of whether the result of the case is likely to alter the legal position of the association as such (see, to that effect, order of the President of the Court of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 8 and the case-law cited).
10 Indeed, that broad interpretation of the right to intervene in favour of representative associations is intended to facilitate assessment of the context of such cases submitted to the EU Courts while avoiding multiple individual interventions which would compromise the efficiency and the proper course of the procedure. Thus, intervention by such an association offers an overall perspective of the collective interests of its members which it defends and which are affected by a question of principle on which the result of the case depends (see, to that effect, order of the President of the Court of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 9 and the case-law cited).
11 Thus, in accordance with the case-law referred to in paragraph 9 of the present order, a professional association may be granted leave to intervene in a case, first, if it represents a significant number of natural or legal persons active in the field concerned by the dispute, second, if its objects include the protection of the interests of its members, third, if the case may raise questions of principle affecting the activity concerned and, lastly, fourth, if the collective interests of its members may be affected significantly by the forthcoming judgment (see, to that effect, order of the President of the Court of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 10 and the case-law cited).
12 The application to intervene submitted by INTA must be assessed in the light of those conditions.
13 In the first place, it is apparent from the application to intervene that INTA is a not-for-profit association established in New York (United States) with legal personality. It is a global association of proprietors of trade marks, including EU trade marks, and professionals in the field of trade mark law. Its membership includes over 6 000 organisations from all sectors of economic activity as well as providers of services in the field of trade mark law and associations of undertakings in the 27 Member States. INTA therefore has the characteristics of a representative professional association.
14 In the second place, it is apparent from the application to intervene and the documents annexed to it that the objects of INTA are, inter alia, to support trade marks and other complementary intellectual property rights in order to foster consumer trust, drive economic growth and encourage innovation, to protect the interests of the public through the proper use of trade marks, by striving to advance the development of trade mark and unfair competition laws and treaties throughout the world, and to promote the interests of its members in the uses of their trade marks. Furthermore, it is also apparent from that application that INTA has been an observer at the World Intellectual Property Organization (WIPO) since 1979 and works with EUIPO, including through its participation in EUIPO’s User Group meetings and in joint meetings between it and EUIPO on trade mark office practices.
15 Moreover, the dispute at issue relates to trade mark law and is therefore connected with the objects of INTA, which include promoting the interests of its members regarding the uses made of their trade marks.
16 In the third place, first, it should be noted that the present case, concerning an appeal against the judgment under appeal, by which the General Court annulled the decision of the Second Board of Appeal of EUIPO of 10 February 2021, by which that Board of Appeal rejected an opposition based on earlier rights protected in the United Kingdom on the ground, in essence, that the opponent could no longer rely on the law of that State following its withdrawal from the European Union, raises the issue as to what date and circumstances are to be taken into account in assessing the interest of the proprietor in the success of an opposition based on such earlier rights to an EU trade mark application and in assessing EUIPO’s obligation to take those earlier rights into consideration. Second, that case raises the more general question of the effect of the earlier right ceasing, ex nunc, in the course of opposition or invalidity proceedings before EUIPO, to be capable of being relied upon on the outcome of those proceedings (see, to that effect, order of 16 November 2022, EUIPO v Nowhere, C‑337/22 P, EU:C:2022:908, paragraph 34).
17 These are questions of principle relating, in particular, to the condition requiring an interest in bringing proceedings and in continuing the proceedings in the context of administrative proceedings relating to EU trade marks and to the principles of territoriality of the trade mark and of the unitary character of the EU trade mark. In addition, they concern not only the effect of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union on such marks, but also all situations, which frequently arise in the field of intellectual property, where an earlier right ceases to exist during the administrative proceedings, in particular in the event of revocation or expiry of that right (see, to that effect, order of 16 November 2022, EUIPO v Nowhere, C‑337/22 P, EU:C:2022:908, paragraphs 37 to 39).
18 Thus, those questions are of particular importance both for the users of the EU trade mark system and for the national courts (see, to that effect, order of 16 November 2022, EUIPO v Nowhere, C‑337/22 P, EU:C:2022:908, paragraph 38), since such a system is intended to enable undertakings to carry out an economic activity without restriction in the whole of the internal market (see, to that effect, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 40).
19 Consequently, the present case raises questions of principle which are liable to affect the functioning of the EU trade mark system, of which the members of INTA are users.
20 In the fourth place, in the light of the considerations set out in paragraphs 16 to 19 of the present order, it must be held that the interests of the members of INTA are likely to be affected significantly by the forthcoming judgment, in particular, as that association observes, in essence, in its application to intervene, in view of the fact that the Court is likely to decide, by that judgment, the issue as to what date is to be taken into account in determining whether an earlier right is protected by EU law and may therefore be relied on in support of an opposition to the registration of an EU trade mark.
21 It follows from all of the foregoing that INTA must be regarded as having established to the requisite legal standard that it has a direct, existing interest in the outcome of EUIPO’s form of order seeking to have set aside the judgment under appeal and, consequently, an interest in the result of the case submitted to the Court in the context of the present appeal, as provided for in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
The procedural rights of the intervener
22 Since the application to intervene has been allowed, pursuant to Article 131(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules, INTA is to receive a copy of every procedural document served on the parties, unless any party requests that certain documents be excluded from such communication.
23 As that application was made within the one-month period laid down in Article 190(2) of the Rules of Procedure, INTA will be permitted, in accordance with Article 132(1) of those rules, applicable to appeal proceedings under Article 190(1) of those rules, to submit a statement in intervention within one month after the communication referred to in the preceding paragraph.
24 Lastly, INTA will be permitted to submit oral observations if a hearing is organised.
Costs
25 Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
26 In the present case, since INTA’s application to intervene has been granted, the costs relating to its intervention must be reserved.
On those grounds, the President of the Court hereby orders:
1. The International Trademark Association (INTA) is granted leave to intervene in Case C‑337/22 P in support of the form of order sought by the European Union Intellectual Property Office (EUIPO).
2. A copy of every procedural document shall be served on the International Trademark Association (INTA) by the Registrar.
3. The International Trademark Association (INTA) has one month from the date of service referred to in point 2 of this operative part to submit a statement in intervention.
4. The costs relating to the intervention by the International Trademark Association (INTA) are reserved.
Luxembourg, 27 April 2023.
A. Calot Escobar | | K. Lenaerts |