Order of 26 Nov 2021, C-327/21 (Giro Travel Company v Andreas Stihl), ECLI:EU:C:2021:966.

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

26 November 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-327/21 P,

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

Giro Travel Company SRL, established in Roman (Romania), represented by C.N. Frisch, avocat,

appellant,

the other parties to the proceedings being:

Andreas Stihl AG & Co. KG, established in Waiblingen (Germany), represented by S. Völker, M. Pemsel, and C. Eulenpesch, Rechtsanwälte,

applicant at first instance,

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, S. Rodin (Rapporteur) and N. Piçarra, Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Giro Travel Company SRL asks the Court of Justice to set aside the judgment of the General Court of the European Union of 24 March 2021, Andreas Stihl v EUIPO – Giro Travel Company (Combination of the colours grey and orange) (T-193/18, not published, EU:T:2021:163, ‘the judgment under appeal’), by which the General Court upheld the action brought by Andreas Stihl AG & Co. KG for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 January 2018 (Case R 200/2017-2), relating to invalidity proceedings between Giro Travel Company and Andreas Stihl.

 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        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 of the Court, 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 of Justice 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 puts forward four arguments.

7        By its first argument, the appellant submits that the unity and consistency of EU law would be seriously threatened if the judgment under appeal were to be regarded as final since the General Court erred in law, in paragraphs 38 to 41 of that judgment, in essence, by confirming the registration as an EU trade mark of a sign composed of a combination of the colours orange and grey. In that regard, the appellant submits that the mark at issue does not satisfy a number of criteria stemming from Article 4 and Article 7(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as interpreted in the relevant case-law of the Court of Justice and of the General Court between 2002 and 2019. The General Court therefore either examined incorrectly or failed to examine those criteria. Furthermore, the General Court did not determine the category of thepublic which constituted the relevant public, in that it referred, in paragraphs 39 and 41 of the judgment under appeal, to both the average consumer and the specialised public.

8        By its second argument, the appellant complains that the General Court erred in law by failing to take account of the solution adopted in the judgment of 29 July 2019, Red Bull v EUIPO (C-124/18 P, EU:C:2019:641). Such an omission constitutes an infringement of the principles of legal certainty and legitimate expectations. Given that the suspension of the proceedings before the General Court was decided on the ground that it raised the same question of interpretation as that at issue in that judgment, a person or entity recognised by law would never be able to understand in which cases Article 69(a) of the Rules of Procedure of the General Court may be applied. Thus, the unity and consistency of the applicability of that provision are affected.

9        By its third argument, the appellant complains that the General Court erred in law by disregarding the relevant earlier case-law. Accordingly, the principles of legitimate expectations, equal treatment and proportionality are not observed. Thus, the unity and consistency of their applicability are affected and their force as a derived source of law is diminished, thus affecting the whole structure of EU law.

10      By its fourth argument, the appellant complains that the General Court erred in law by applying EU law too broadly, thus conferring unfair competitive advantages on an undertaking in breach of the principle of equal treatment. This goes against the settled case-law and affects the unity and consistency of applicability and interpretation of EU law. According to the appellant, by confirming the registration of a mark which goes beyond the scope of the protection conferred by Regulation No 40/94, the General Court also infringed the principle of proportionality by ruling extra legem.

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 (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13 and the case-law cited).

12      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 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 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 (see, inter alia, orders of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14, and of 6 October 2021, FCA Italy v EUIPO, C-360/21 P, not published, EU:C:2021:841, paragraph 13).

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

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

15      In the present case, it should be noted that the appellant’s line of argument, summarised in paragraphs 7 to 10 of the present order, is based, in essence, on the alleged failure to have regard to the case-law of the Court of Justice and the General Court, in that, in the judgment under appeal, the General Court failed to take into consideration certain principles and criteria for assessing the clear and precise nature of the mark at issue. It should be noted that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof borne by a 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. The appellant must comply to that end with all the requirements set out in paragraph 12 of the present order (see, to that effect, order of 13 October 2020, Abarca v EUIPO, C-313/20 P, not published, EU:C:2020:821, paragraph 17 and the case-law cited).

16      In the present case, although the appellant identifies the paragraphs of the judgment under appeal which it challenges and those of the rulings of the Court of Justice and of the General Court which allegedly were infringed, it does not provide sufficient information regarding the similarity of the situations referred to in that case-law capable of establishing the existence of the alleged contradictions (see, to that effect, order of 22 September 2021, Apologistics v EUIPO, C-369/21 P, not published, EU:C:2021:788, paragraph 19).

17      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.

18      In the light of all of the foregoing, the appeal should not be allowed to proceed.

 Costs

19      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.

20      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.      Giro Travel Company SRL shall bear its own costs.

Luxembourg, 26 November 2021.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.