CJEU Order C-313/20 Abarca v EUIPO 13 Oct 2020

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

13 October 2020 (*)

(Appeal – EU trade mark – Admission of appeals – Article 170b of the Rules of Procedure of the Court of Justice – 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-313/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 July 2020,

Abarca – Companhia de Seguros SA, established in Lisbon (Portugal), represented by J.M. Pimenta, advogado, and Á. Pinho, advogada,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Abanca Corporación Bancaria, SA, established in Betanzos (Spain), represented by M. Aznar Alonso, abogado,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, L. Bay Larsen (Rapporteur) and M. Safjan, 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, Abarca – Companhia de Seguros SA asks the Court of Justice to set aside the judgment of the General Court of the European Union of 29 April 2020, Abarca v EUIPO – Abanca Corporación Bancaria (ABARCA SEGUROS) (T-106/19, not published, ‘the judgment under appeal’, EU:T:2020:158), whereby the General Court dismissed its action seeking annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 November 2018 (Case R 1370/2018-2), relating to opposition proceedings between Abanca Corporación Bancaria and Abarca – Companhia de Seguros.

Determination as to 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 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(3) of those rules, the Court’s decision on the request that the appeal be allowed to proceed is to take the form of a reasoned order.

6 In support of its request that the appeal be allowed to proceed, the appellant submits that the appeal raises issues that are significant with respect to the unity, consistency and development of EU law.

7 In the present case, by its appeal, the appellant relies on 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).

8 The appellant submits, in essence, that the General Court, by failing to carry out a global assessment of the likelihood of confusion based on the overall impression produced by all the elements which compose the marks at issue and by failing to take into account the low degree of distinctiveness of the earlier mark, infringed Article 8(1)(b) of Regulation 2017/1001.

9 More specifically, as regards the global assessment of the likelihood of confusion, the appellant submits that the General Court failed to take into account, in its assessment of the similarity of the signs at issue, all the elements of the mark applied for by wrongly taking as its basis, in paragraph 32 of the judgment under appeal, the case-law concerning exceptional situations, in accordance with which the assessment of similarity may be made on the basis of the dominant element alone. As regards the distinctiveness of the earlier mark, the appellant criticises the General Court for infringing the principles of equality of the parties, equity and legal certainty by finding that the earlier mark had an average degree of distinctiveness.

10 At the outset, it should be observed 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 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).

11 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 3 September 2020, Gamma-A v EUIPO, C-200/20 P, not published, EU:C:2020:663, paragraph 10 and the case-law cited).

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

13 Therefore, a request that an appeal be allowed to proceed which does not contain the information referred to 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 such as to justify 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).

14 In the present case, as regards the line of argument set out in paragraphs 8 and 9 of the present order, it should be noted that, while the appellant identifies the errors of law allegedly made by the General Court, the appellant neither sufficiently explains nor, in any event, demonstrates in what respect such infringements of Article 8(1)(b) of Regulation 2017/1001, even if assumed to be established, raise issues that are significant with respect to the unity, consistency or development of EU law which justify the appeal being allowed to proceed.

15 In accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law raised in its appeal, the appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal. 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 arguments of a general nature (order of 4 June 2020, Société des produits Nestlé v Amigüitos pets & life and EUIPO, C-97/20 P, not published, EU:C:2020:442, paragraph 18 and the case-law cited).

16 However, in the present case, the appellant has merely asserted that the judgment under appeal infringes Article 8(1)(b) of Regulation 2017/1001, with significant consequences as regards the unity, consistency or development of EU law, without, however, providing concrete arguments specific to the present case in order to prove how that infringement, and, in particular, the manner in which the signs were assessed by taking into account the dominant elements and the distinctive character of the earlier mark by the General Court, raise a significant issue with respect to the unity, coherence or development of EU law.

17 Furthermore, it must be noted that the argument that the General Court departed from the relevant case-law of the Court of Justice is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the appellant requesting that the 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, the appellant having to comply to that end with all the requirements set out in paragraph 12 of the present order (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17 and the case-law cited). None of those requirements is satisfied in the present case.

18 In those circumstances, it must be concluded that the arguments put forward by the appellant in support of its request that its appeal be allowed to proceed are not capable of establishing that the appeal raises issues that are significant with respect to the unity, consistency or development of EU law.

19 In the light of all the foregoing, the request that the appeal be allowed to proceed must be refused.

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. Abarca – Companhia de Seguros SA shall bear its own costs.

Luxembourg, 13 October 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

* Language of the case: English.

Order of 13 Oct 2020, C-313/20 (Abarca v EUIPO), ECLI:EU:C:2020:821.