Order of 4 Jul 2024, C-295/24 (Thomas Henry v EUIPO), ECLI:EU:C:2024:586.

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

4 July 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-295/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 April 2024,

Thomas Henry GmbH, established in Berlin (Germany), represented by D. Mienert, J. Si-Ha Selbmann, O. Spieker and K. Uzman, Rechtsanwälte,

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 J.-C. Bonichot (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Thomas Henry GmbH asks the Court of Justice to set aside the order of the General Court of the European Union of 26 February 2024, Thomas Henry v EUIPO – Shanghai Chengzhi Enterprise Service Center (MATE MATE) (T-505/23, ‘the order under appeal’, EU:T:2024:141), 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 21 June 2023 (Case R 2364/2022-4), relating to invalidity proceedings between Shanghai Chengzhi Enterprise Service Center and Thomas Henry.

 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        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the abovementioned 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 as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.

 Arguments of the appellant

6        In support of its request that the appeal be allowed to proceed, the appellant submits that its appeal must be allowed to proceed since the clarification of the issues which are the subject of the appeal is of significant importance with respect to the unity, consistency and development of EU law.

7        In the first place, the appellant complains that the General Court infringed Article 7(1)(c) 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) by holding that the figurative sign ‘MATE MATE’ was descriptive of the goods in respect of which the contested mark was registered. In that regard, the appellant submits, inter alia, that the term ‘MATE’ in that sign is multifaceted and is not associated solely with the plant, which highlights its distinctiveness. Furthermore, the appellant maintains that a sign is not descriptive if it cannot be clearly assigned to a language. It adds that the requirements for unambiguous attribution to a language are met only if the term has a consistent meaning, that is to say, where its meaning is clearly defined and is understood in a similar way by different speakers. According to the appellant, those requirements are not met in the present case, since the word ‘MATE’ is not exclusive to any one language and holds varied interpretations across languages.

8        In addition, the appellant submits that the assumption of a homogeneous group of goods or services requires a separate and comprehensive statement of reasons. It argues that, even if, in the event that such a group or category exists, the justification for the goods and services can be generalised, that does not relieve the General Court of its duty to explain in more detail the assumption of a homogeneous group or category of goods or services.

9        In the second place, the appellant complains that the General Court erred in its assessment of the requirements set out in Article 63 of Regulation 2017/1001, in that it incorrectly considered that Shanghai Chengzhi Enterprise Service Center had complied with the requirements relating to proof of capacity to sue. It maintains that the licence submitted by Shanghai Chengzhi Enterprise Service Center in that regard dates from December 2019, whereas the application for a declaration of invalidity was filed on 13 September 2021. It argues that, consequently, on the latter date, Shanghai Chengzhi Enterprise Service Center did not fulfil the requirements for initiating invalidity proceedings.

10      In the third place, the appellant complains that the General Court improperly exercised its discretion regarding earlier registrations of the ‘MATE MATE’ trade mark. According to the appellant, the General Court was required to incorporate, or at least to examine, the earlier registrations submitted in its decision, which it failed to do. It maintains that that court merely noted that those registrations were irrelevant to the proceedings relating to the application in question.

 Findings of the Court

11      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).

12      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 determine, 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).

13      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 11 July 2023, EUIPO v Neoperl, C-93/23 P, EU:C:2023:601, paragraph 20).

14      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, of 28 May 2024, Cruelty Free Europe v ECHA, C-79/24 P, EU:C:2024:430, paragraph 19).

15      In the present case, as regards, in the first place, the appellant’s line of argument set out in paragraphs 7, 9 and 10 of the present order, alleging infringement of Article 7(1)(c) and Article 63 of Regulation 2017/1001 and claiming that the General Court improperly exercised its discretion, it must be observed that the appellant merely sets out errors allegedly committed by the General Court, without identifying the paragraphs of the order under appeal which it is calling into question or explaining the concrete reasons why those errors, assuming they were established, raise issues that are significant with respect to the unity, consistency or development of EU law. It must therefore be held that the appellant has failed to comply with all the requirements set out in paragraph 12 of the present order.

16      Furthermore, since the appellant’s line of argument concerning the lack of descriptive character of the figurative sign ‘MATE MATE’ seeks to call into question factual assessments made by the General Court, it should be borne in mind that such a line of argument cannot demonstrate 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 (see, to that effect, order of 9 January 2024, Yayla Türk v EUIPO, C-611/23 P, EU:C:2024:3, paragraph 14 and the case-law cited).

17      In the second place, as regards the line of argument referred to in paragraph 8 of the present order, it must be observed that, by that line of argument, the appellant seeks, in essence, to criticise the General Court for failing to fulfil its obligation to state reasons, in that the General Court did not explain in sufficient detail why it took into account the assumption of a homogeneous group or category of goods or services.

18      In that regard, while it is true that, as is apparent from the case-law of the Court of Justice, an absence of or an inadequate statement of reasons constitutes an error of law which may be relied on in the context of an appeal, the determination as to whether the appeal is allowed to proceed remains subject to specific conditions consisting, for the appellant, in demonstrating, as referred to in paragraph 12 of the present order, that that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law (see, by analogy, order of 8 May 2024, Wyrębski v QC and Others, C-689/23 P, EU:C:2024:397, paragraph 25 and the case-law cited). The appellant does not provide the reasons why the alleged absence of a statement of reasons in the order under appeal raises such an issue.

19      In those circumstances, it must be held that the request submitted by the appellant does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

20      In the light of the foregoing considerations, the appeal should not be allowed to proceed.

 Costs

21      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.

22      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it 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.      Thomas Henry GmbH shall bear its own costs.

Luxembourg, 4 July 2024.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber
determining whether appeals may proceed

*      Language of the case: English.