ORDER OF THE COURT (Chamber determining whether appeals may proceed)
8 April 2024 (*)
(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‑670/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 November 2023,
Gürok Turizm ve Madencilik Anonim Sirketi, established in Kütahya (Türkiye), represented by M.E. López Camba, abogada,
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, O. Spineanu-Matei and L.S. Rossi (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, N. Emiliou,
makes the following
Order
1 By its appeal, Gürok Turizm ve Madencilik Anonim Sirketi asks the Court of Justice to set aside the judgment of the General Court of the European Union of 13 September 2023, Gürok Turizm ve Madencilik v EUIPO – Darvas and Pap (LΛΛVΛ) (T‑473/22, EU:T:2023:543; ‘the judgment under appeal’), by which the General Court dismissed the appellant’s action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 May 2022 (Case R 1745/2021-2), concerning opposition proceedings between Gürok Turizm ve Madencilik, on the one hand, and Mr Gábor Darvas and Ms Dorina Pap, on the other.
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 As provided in 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 to rule on that request.
5 In accordance with Article 170b(1) and (3) of the Rules of Procedure, 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 the single ground of its appeal, alleging infringement of Article 8(1)(b) 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), raises an issue that is significant with respect to the unity, consistency or development of EU law.
7 By the first part of its single ground of appeal, the appellant complains that, in paragraphs 30 to 32, 71 and 73 of the judgment under appeal, the General Court erred in law in its assessment of the level of attention of the relevant public and its relevance for the assessment of the likelihood of confusion.
8 More specifically, it submits that, in order to determine the level of attention of the relevant public, the General Court took into account criteria relating to the frequency of purchase of the goods as well as to their specific nature and their uses, while failing to take into account other criteria relating to the cost and ease of purchase of those goods, their potentially dangerous or technically sophisticated nature, or the need for professional assistance or advice when choosing and purchasing those goods. In doing so, the General Court departed from the principles laid down in its case-law, arising in particular from the judgments of 16 January 2008, Inter-Ikea v OHIM – Waibel (idea) (T‑112/06, EU:T:2008:10, paragraph 37); of 14 January 2016, The Cookware Company v OHIM – Fissler (VITA+VERDE) (T‑535/14, EU:T:2016:2, paragraph 29); and of 14 December 2022, Pierre Lannier v EUIPO – Pierre Lang Trading (PL) (T‑530/21, EU:T:2022:818, paragraph 81).
9 In that context, the appellant submits that the issue relating to the need to establish uniform rules for assessing the level of attention of the relevant public, raised by its appeal, is significant with respect to the unity, consistency or development of EU law. That assessment is decisive in the global assessment of the likelihood of confusion. The existence of heterogeneous case-law of the General Court as regards the criteria to be taken into account for that purpose infringes the principle of legal certainty.
10 By the second part of its single ground of appeal, the appellant complains that the General Court confined itself to finding, in the context of the assessment of the visual and phonetic similarity of short signs, that the shorter a sign, the better the public is able to perceive the differences between the signs at issue. However, it is apparent from the case-law that, even in short marks, some differences will be insufficient if they do not result in a difference capable of distinguishing the signs.
11 By the third and last part of its single ground of appeal, the appellant complains that the General Court did not, in the context of the phonetic comparison of the signs, correctly analyse the perception and pronunciation of the signs by part of the relevant public.
12 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).
13 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 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).
14 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, secondly, 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).
15 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 9 January 2024, Yayla Türk v EUIPO, C‑611/23 P, EU:C:2024:3, paragraph 13).
16 In the present case, in the first place, as regards the line of argument summarised in paragraphs 7 to 9 of the present order, alleging that the General Court failed to have regard to its own case-law, it should be observed that such an 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. To that end, the appellant must comply with all the requirements set out in paragraph 14 of the present order (see, by analogy, orders of 18 May 2021, Embutidos Monells v EUIPO, C‑59/21 P, EU:C:2021:396, paragraph 19, and of 19 February 2024, Balaban v EUIPO, C‑651/23 P, EU:C:2024:140, paragraph 21).
17 First, although the appellant specifies the contested paragraphs of the judgment under appeal and those of the rulings of the General Court that have been disregarded, it does not provide sufficient information regarding the similarity of the situations referred to in those rulings to make it possible to establish the existence of the alleged contradictions (see, to that effect, orders of 6 April 2022, Sanford v EUIPO, C‑19/22 P, EU:C:2022:262, paragraph 19, and of 27 September 2023, LG Electronics v EUIPO, C‑250/23 P, EU:C:2023:706, paragraph 19).
18 Secondly, the appellant confines itself to submitting arguments of a general nature, maintaining that there is a need to standardise the case-law of the General Court by establishing uniform rules and that the existence of heterogeneous case-law infringes the principle of legal certainty, without setting out specifically the concrete reasons why the alleged contradictions, assuming that they are established, raise 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 (see, by analogy, order of 27 September 2023, LG Electronics v EUIPO, C‑250/23 P, EU:C:2023:706, paragraph 21).
19 In the second place, as regards the arguments summarised in paragraphs 10 and 11 of the present order, it is sufficient to note that the appellant, first, does not identify the paragraphs of the judgment under appeal which it intends to challenge and, secondly, confines itself to setting out the errors of law allegedly committed by the General Court in the judgment under appeal, without claiming or, a fortiori, demonstrating that such errors, assuming that they are established, raise issues that are significant with respect to the unity, consistency or development of EU law which would justify the appeal being allowed to proceed (see, to that effect, order of 26 September 2023, Mordalski v EUIPO, C‑321/23 P, EU:C:2023:705, paragraph 14 and the case-law cited). It follows that the appellant has not complied with all the requirements set out in paragraph 14 of the present order.
20 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.
21 In the light of all the foregoing considerations, the appeal should not be allowed to proceed.
Costs
22 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.
23 Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before that party 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. Gürok Turizm ve Madencilik Anonim Sirketi shall bear its own costs.
Luxembourg, 8 April 2024.
A. Calot Escobar | | L. Bay Larsen |
Registrar | | President of the Chamber determining whether appeals may proceed |