Order of 29 Jun 2021, C-185/21 (Turk Hava Yollari v EUIPO), ECLI:EU:C:2021:526.

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

29 June 2021 (*)

(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-185/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 March 2021,

Turk Hava Yollari AO, established in Istanbul (Turkey), represented by R. Almaraz Palmero, avocate,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Sky Ltd, established in Isleworth (United Kingdom), represented by A.M. Brackenbury, Solicitor, and A. Zalewska, adwokat,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, N. Piçarra and D. Šváby (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, Turk Hava Yollari AO asks the Court of Justice to set aside the judgment of the General Court of the European Union of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife) (T-382/19, not published, EU:T:2021:45; ‘the judgment under appeal’) by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 April 2019 (Case R 880/2018-4), relating to invalidity proceedings between Sky and Turk Hava Yollari.

 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 first decides that it should be allowed to do so.

3        In accordance with the third paragraph of Article 58a of the Statute of the Court of Justice, 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 required 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 relies on three arguments.

7        By its first argument, the appellant complains that the General Court erred in law in deciding not to stay the proceedings, despite both of the main parties agreeing to the request for a stay and that request not being opposed by Sky. It submits in that regard that the General Court infringed the general principles of legal certainty and procedural fairness according to Article 7 TFEU, and Article 69(c) and (d) of the Rules of Procedure of the General Court.

8        According to the appellant, even if the request for suspension is not granted in the present appeal proceedings before the Court of Justice, the latter would become devoid of purpose in any event if the earlier registration of the EU trade mark SKY, relied on by Sky in support of its application for a declaration of invalidity, ceases to be valid in cancellation proceedings brought by a third party.

9        By its second argument, the appellant complains that the General Court erred in law by conferring an exclusive right to registration of an earlier mark, which is most likely invalid, and which would imply a monopoly on the word ‘sky’. In that regard, the appellant claims that the General Court infringed the principle of free competition under Articles 101 and 102 TFEU.

10      In that respect, the appellant relies on the judgment of the Court of 29 January 2020, Sky and Others (C-371/18, EU:C:2020:45), which makes reference to Sky’s intention, by means of the Sky marks, to block and monopolise the use of the word ‘sky’ and not to use it in good faith and in accordance with the rules on fair competition. Therefore, it submits that Sky appears to wish to prevent third parties from registering other marks containing the word ‘sky’, even if it is registered with other combinations of words and in a stylised manner accompanied by other figurative elements.

11      By its third argument, the appellant complains that the General Court erred in law, in paragraphs 48 to 50 of the judgment under appeal, by holding, in essence, that the appellant did not raise, before the Board of Appeal, the question of possible limitation in consequence of acquiescence. The General Court thus infringed Article 61 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), read in conjunction with Article 54(1) of that regulation.

12      In particular, the appellant submits that Sky committed an abuse of law by introducing in bad faith an application for a declaration of invalidity against the registration of a well-known mark such as SKYLIFE, whereas the period of limitation in consequence of acquiescence was about to expire. It adds that Sky or its subsidiaries have brought an action for annulment or opposition before EUIPO seeking the annulment or opposition of all marks containing the word ‘sky’ in all classes of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended (‘the Nice Agreement’). Therefore, according to the appellant, the international registration of the figurative sign SKYLIFE should remain valid for all the services in Classes 39 and 41 of the Nice Agreement covered by the registration.

13      For the purposes of examining the appellant’s request that the appeal be allowed to proceed, it must be recalled, as a preliminary point, 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 26 November 2020, Scorify v EUIPO, C-418/20 P, not published, EU:C:2020:968, paragraph 17 and the case-law cited).

14      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 26 November 2020, Scorify v EUIPO, C-418/20 P, not published, EU:C:2020:968, paragraph 18 and the case-law cited).

15      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 (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

16      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 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

17      In the present case, as regards the arguments set out in paragraphs 7 to 12 of the present order, it should be noted that the appellant merely sets out the errors allegedly committed by the General Court, without in any way claiming or, a fortiori, showing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

18      In those circumstances, 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.

19      In the light of all of the foregoing, 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.      Turk Hava Yollari AO shall bear its own costs.

Luxembourg, 29 June 2021.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.