Order of 19 Jul 2024, C-333/24 (Sumol + Compal Marcas v EUIPO), ECLI:EU:C:2024:628.

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

19 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-333/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 May 2024,

Sumol + Compal Marcas SA, established in Carnaxide (Portugal), represented by A. de Sampaio, advogada,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Kåska Oy, established in Helsinki (Finland),

intervener 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, J. Kokott,

makes the following

Order

1        By its appeal, Sumol + Compal Marcas SA asks the Court to set aside the judgment of the General Court of the European Union of 28 February 2024, Sumol + Compal Marcas v EUIPO – Kåska (smål) (T-279/23, ‘the judgment under appeal’, EU:T:2024:130), whereby the General Court dismissed its action seeking annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 March 2023 (Case R 2295/2022-5) relating to opposition proceedings between Sumol + Compal Marcas and Kåska Oy.

 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 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 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 the single ground of its 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), raises issues that are significant with respect to the unity, consistency or development of EU law.

7        In the first place, the appellant complains that the General Court erred in law, in paragraphs 30, 31 and 33 of the judgment under appeal, as regards the relevant factors to be taken into account in assessing the likelihood of confusion of the signs at issue. More specifically, it claims that, contrary to what the General Court held, the signs at issue are similar to a high degree and it criticises the General Court, in that context, for failing to take account of the interdependence between the relevant factors, in particular the similarity of the signs and goods at issue. In that regard, the appellant submits that it is important for legal certainty that the Court of Justice rule on the inconsistency in the General Court’s assessment of the principle of interdependence.

8        In the second place, the appellant complains that the General Court erred in law, in paragraph 37 of the judgment under appeal, by failing to take account of the enhanced distinctiveness through use of the earlier mark when examining the likelihood of confusion between the signs at issue. It maintains that the judgment under appeal is vitiated by inconsistent reasoning, in so far as the General Court recognised in that judgment the distinctiveness of the earlier mark, but without taking into account its enhanced distinctiveness through use. In that regard, the appellant submits that it is important for legal certainty that, where there is an invoked enhanced distinctiveness through use of the earlier mark, the Court of Justice rule on the inconsistency in the assessment of the likelihood of confusion carried out by the General Court.

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 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).

10      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 (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).

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. 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 (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).

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

13      In the present case, it must be stated that the arguments by which the appellant seeks to demonstrate that the issues of law on which the appeal is based are significant with respect to the unity, consistency or development of EU law do not meet the requirements set out in paragraph 11 above.

14      In the first place, as regards the appellant’s line of argument, as summarised in paragraph 7 above and relating to the General Court’s alleged incorrect assessment of the likelihood of confusion, it should be noted that, by that line of argument, the appellant is in fact seeking to call into question the factual assessment made by the General Court. 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, by analogy, order of 9 January 2024, Yayla Türk v EUIPO, C-611/23 P, EU:C:2024:3, paragraph 14 and the case-law cited).

15      In the second place, as regards the line of argument referred to in paragraph 8 above concerning the General Court’s assessment of the distinctiveness of the contested mark, it should be borne in mind that, in accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked 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 the significance of such issues by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (see, to that effect, orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraphs 27 and 28, and of 13 July 2023, Hecht Pharma v EUIPO, C-142/23 P, EU:C:2023:600, paragraph 21).

16      In the present case, the appellant’s mere claim that the alleged errors committed by the General Court seriously affect the unity, consistency or development of EU trade mark law and thereby undermine legal certainty is manifestly too general to constitute such a demonstration. Therefore, it must be held that the appellant did not comply with the requirements set out in paragraph 11 above.

17      In those circumstances, the Court finds 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 the foregoing considerations, the appeal should not be allowed to proceed.

 Costs

19      Under Article 137 of the Rules of Procedure, applicable to the procedure 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.      Sumol + Compal Marcas SA shall bear its own costs.

Luxembourg, 19 July 2024.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.