Order of 3 Sep 2020, C-200/20 (Gamma-A v EUIPO and Zivju pārstrādes uzņēmumu serviss), ECLI:EU:C:2020:663.

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

3 September 2020 (*)

(Appeal – Community design – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court – Request failing to demonstrate a significant issue with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed)

In Case C-200/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 May 2020,

Gamma-A SIA, established in Riga (Latvia), represented by M. Liguts, advokāts,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Zivju pārstrādes uzņēmumu serviss SIA, established in Riga (Latvia), represented by J. Alfejeva, advokāte,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of R. Silva de Lapuerta, Vice-President of the Court, I. Jarukaitis and C. Lycourgos (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its appeal, Gamma-A SIA asks the Court to set aside the judgment of the General Court of the European Union of 12 March 2020, Gamma-A v EUIPO – Zivju pārstrādes uzņēmumu serviss (Packaging for foodstuffs) (T-353/19, not published, EU:T:2020:95; ‘the judgment under appeal’), whereby the General Court dismissed its action seeking annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 February 2019 (Case R 2543/2017-3), relating to invalidity proceedings between the intervener at first instance, formerly Piejūra SIA, and Gamma-A.

 Whether the appeal should 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 the 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, 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 of the Court, in the situations referred to in the first paragraph of Article 58a of the 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 claims that, in the light of the arguments set out in its appeal, which concern facts which have not been considered or assessed in the case-law, it is essential for the unity, consistency and development of EU law that the Court allow that case to proceed.

7        It claims, in particular, that the Court has not ruled either on the lack of individual character of the contested design in relation to the earlier design, or on the assessment of the overall impression on the informed user as opposed to that produced on such a user by any design which has been made available to the public before the date on which the application was filed, or, finally, on the assessment of all the evidence.

8        It follows that the General Court’s assessment that the contested design produces an impression of ‘déjà vu’ in relation to the earlier design because it replicates the same characteristics of the appearance of that earlier design is erroneous. The appellant concludes that such an assessment, which is unfounded, may, in future, amount to a threat for design holders, in the form of a restriction of the rights conferred on them by Regulation No 6/2002.

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 16 September 2019, Kiku v CPVO, C-444/19 P, not published, EU:C:2019:746, paragraph 11, and of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13).

10      Furthermore, as is clear from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read in conjunction 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 the 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 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14, and of 4 June 2020, Refan Bulgaria v EUIPO, C-72/20 P, not published, EU:C:2020:443, paragraph 10).

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 (orders of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15, and of 4 June 2020, Refan Bulgaria v EUIPO, C-72/20 P, not published, EU:C:2020:443, paragraph 11).

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 4 June 2020, Refan Bulgaria v EUIPO, C-72/20 P, not published, EU:C:2020:443, paragraph 12).

13      In the first place, in the present case, it must be stated that the appellant does not indicate the grounds on which its appeal is based nor does it set out with the degree of clarity required by the case-law referred to in paragraphs 10 and 11 of this order the questions of law to which they relate. Moreover, the request that the appeal be allowed to proceed does not specify either the provisions of EU law or the case-law which were allegedly infringed by the judgment under appeal and does not describe to the required standard the error allegedly committed by the General Court, since that request merely states that the General Court’s assessment that the contested design produces an impression of ‘déjà vu’ in relation to the earlier design is erroneous.

14      In the second place, the appellant does not provide adequate reasoning why the present appeal raises an issue that is significant with respect to the unity and consistency of EU law such as to justify that the appeal be allowed to proceed.

15      First, as regards the appellant’s assertion, referred to in paragraphs 6 and 7 of this order, that the considerations set out in the present appeal concern facts which have not  been considered or assessed in the case-law, it must be noted that such an assertion, assuming it is correct, does not however mean that such considerations raise issues which are necessarily of significance with respect to the consistency of EU law, and the appellant remains bound to demonstrate that significance by providing detailed information not only on the novelty of those issues, but also on the reasons why they are significant in relation to the consistency of EU law (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 19 and the case-law cited).

16      It must be stated that the appellant does not provide any information in that regard.

17      Second, the appellant merely asserts, in general terms, that the assessment of the General Court, recalled in paragraph 8 of this order, is unfounded and may, in future, amount to a threat for design holders, in the form of a restriction of the rights conferred on them by Regulation No 6/2002. Thus, it does not provide any information making it possible to identify with clarity and detail the reasons why the issues raised by that assessment are significant with respect to the unity, consistency or development of EU law and justify the appeal being allowed to proceed (see, to that effect, order of 21 April 2020, Rezon v EUIPO, C-26/20 P, not published, EU:C:2020:283, paragraph 14).

18      In any event, it should be noted that that assessment, namely that of the individual character of a design, which results from an overall impression of difference, produced on the informed user, in relation to any previous presence in the design corpus, is a factual analysis.

19      A claim alleging that the General Court erred in its assessment of the facts cannot state that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law (order of 28 May 2020, Billa v EUIPO, C-61/20 P, not published, EU:C:2020:408, paragraph 19 and the case-law cited).

20      In those circumstances, it must be held that since the request that the appeal be allowed to proceed does not comply with the requirements set out in paragraphs 9 to 12 of the present order, it is not such as to establish 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 of the foregoing, the request that the appeal be allowed to proceed must be rejected.

 Costs

22      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 order which closes the proceedings.

23      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.      Gamma-A SIA shall bear its own costs.

Luxembourg, 3 September 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.