ORDER OF THE COURT (Chamber determining whether appeals may proceed)
17 July 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‑280/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 May 2023,
Canai Technology Co. Ltd, established in Guangzhou (China), represented by J.F. Gallego Jiménez, Y. Hernández Viñes, E. Sanz Valls and P. Bauzá Martínez, avocats,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Trend Fin BV, established in Utrecht (Netherlands),
intervener at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, G. Xuereb and I. Ziemele (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, G. Pitruzzella,
makes the following
Order
1 By its appeal, Canai Technology Co. Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 1 March 2023, Canai Technology v EUIPO – Trend Fin (HE&ME) (T‑25/22; ‘the judgment under appeal’; EU:T:2023:99), by which the General Court dismissed the appellant’s action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 November 2021 (Case R 1390/2020-1), concerning opposition proceedings between Trend Fin BV and Canai Technology.
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 As provided in 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 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 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 in the form of a reasoned order.
6 In support of its request that the appeal be allowed to proceed, the appellant raises, in essence, a single ground of 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), on account of an incorrect assessment of the comparison of the marks at issue.
7 The appellant submits that the General Court disregarded the principles derived from the relevant case-law of the Courts of the European Union. First of all, the distinctive and dominant elements must be taken into consideration. Next, as regards word marks, the beginning of the sign generally plays an important role for the overall impression created by the mark. In that regard, a coincidence in an element with a weak distinctive character would not normally in itself give rise to a likelihood of confusion. Furthermore, the General Court disregarded the principle that the length of signs must also be taken into account. Finally, the General Court disregarded the principle of ‘neutralisation’. Failure to comply with the abovementioned principles adversely affects the unity and consistency of EU law.
8 In addition, according to the appellant, the judgment under appeal contains contradictory reasoning as regards the role of the distinctive character of the word elements making up the marks at issue. That judgment does not make it possible to determine whether or not the General Court took account of the distinctive character of the word elements making up those trade marks. Such a contradiction would adversely affect the consistency of EU law.
9 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 13 June 2023, Grupa ‘LEW’ v EUIPO, C‑38/23 P, EU:C:2023:494, paragraph 13).
10 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 8 May 2023, Studio Legale Ughi e Nunziante v EUIPO, C‑776/22 P, EU:C:2023:441, paragraph 17).
11 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 8 May 2023, Studio Legale Ughi e Nunziante v EUIPO, C‑776/22 P, EU:C:2023:441, paragraph 18).
12 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 13 June 2023, Grupa ‘LEW’ v EUIPO, C‑38/23 P, EU:C:2023:494, paragraph 16).
13 In the present case, as regards the arguments summarised in paragraph 7 of the present order, relating to the failure to have regard for the principles derived from the relevant case-law of the Courts of the European Union, it must be recalled that the claim that the General Court disregarded the relevant case-law of the Court of Justice and its own case-law is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the person 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 11 of the present order (see, by analogy, order of 5 December 2022, Tigercat International v EUIPO, C‑612/22 P, EU:C:2022:959, paragraph 14 and the case-law cited).
14 It must be stated that, in the present case, the appellant does not explain precisely and clearly why the alleged contradiction between the assessments of the General Court and the case-law relied on raises an issue that is significant with respect to the unity, consistency or development of EU law.
15 Furthermore, as regards the arguments summarised in paragraph 8 of this order, it follows from the settled case-law of the Court of Justice that the question whether a judgment of the General Court is defective, inadequate or contradictory is a question of law which is amenable to review on appeal (order of 30 November 2021, Lee v EUIPO, C‑381/21 P, not published, EU:C:2021:970, paragraph 16 and the case-law cited).
16 By contrast, the circumstance that an appeal raises such a question of law does not, in itself, allow the view to be taken that that appeal must be allowed by the Court of Justice to proceed for the purposes of Article 58a of the Statute. As is apparent from paragraphs 2 to 4 of this order, whether the appeal should be allowed to proceed is subject to compliance with specific conditions consisting, for the appellant, in demonstrating, inter alia, that, independently of the issues of law invoked in its appeal, that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law. 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 of arguments of a general nature (see, to that effect, order of 30 November 2021, Lee v EUIPO, C‑381/21 P, EU:C:2021:970, paragraph 17 and the case-law cited).
17 Although the appellant submits that the judgment under appeal is vitiated by a contradiction as regards the role of the distinctive character of the word elements making up the marks at issue, it does not in any way specify the reasons why that alleged contradiction in the reasoning of the judgment under appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, contrary to the requirements set out in paragraph 11 of the present order.
18 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.
19 In the light of the foregoing considerations, the appeal should not be allowed to proceed.
Costs
20 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.
21 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 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. Canai Technology Co. Ltd shall bear its own costs.
Luxembourg, 17 July 2023.
A. Calot Escobar | | L. Bay Larsen |
Registrar | President of the Chamber determining
| whether appeals may proceed |