Order of 28 Sep 2022, C-342/22 (Laboratorios Ern v EUIPO), ECLI:EU:C:2022:730.

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

28 September 2022 (*)

(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 – Appeal not allowed to proceed)

In Case C-342/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 May 2022,

Laboratorios Ern, SA, established in Barcelona (Spain), represented by I. Miralles Llorca, abogada,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Nordesta GmbH, established in Munich (Germany),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of L. Bay Larsen, Vice-President of the Court, I. Jarukaitis and Z. Csehi (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Laboratorios Ern, SA, seeks to have set aside the judgment of the General Court of the European Union of 16 March 2022, Laboratorios Ern v EUIPO – Nordesta (APIAL) (T-315/21, not published, EU:T:2022:141; ‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 March 2021 (Case R 1560/2020-4), relating to opposition proceedings between Laboratorios Ern and Nordesta GmbH.

 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 those 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 of Justice to rule on that request.

5        In accordance with Article 170b(1) and (3) of those rules, the Court is to rule, as soon as possible, in the form of a reasoned order, on the request that the appeal be allowed to proceed.

6        In support of its request that the appeal be allowed to proceed, the appellant submits that the single ground of its appeal, alleging, in essence, infringement of Article 8(5) 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 and development of EU law.

7        In the first place, the appellant complains that the General Court erred in applying Article 188 of its Rules of Procedure, according to which the pleadings lodged by the parties in proceedings before it may not change the subject matter of the proceedings before the Board of Appeal, in order to declare inadmissible certain evidence intended to establish the reputation of the earlier mark. The subject matter of the dispute has not been altered by the submission of that evidence, since the opposition proceedings which gave rise to the dispute were based on the reputation of the earlier mark.

8        In the second place, the appellant submits, in essence, that the incorrect application by the General Court of Article 8(5) of Regulation 2017/1001 provides the Court of Justice with the opportunity to dispel any doubt as to whether, for the purposes of the application of that provision, it is possible also to admit evidence adduced during the proceedings before the General Court in order to clarify or reinforce an argument, without distorting or altering the subject matter of the dispute. According to the appellant, that issue goes beyond the limited context of the dispute and raises problems of interpretation which might arise in other cases.

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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 20 and the case-law cited).

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 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 (order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 21 and the case-law cited).

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, 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 22 and the case-law cited).

12      Therefore, 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 14 July 2022, Ignacio Carrasco v EUIPO, C-247/22 P, not published, EU:C:2022:591, paragraph 13 and the case-law cited).

13      In the present case, as regards the arguments summarised in paragraphs 7 and 8 of the present order, it should be noted that the appellant merely sets out the errors of law allegedly committed by the General Court in relation to the treatment of the evidence submitted for the first time before it, without, first, identifying all the paragraphs of the judgment under appeal which it seeks to call into question, or, second, setting out specifically the reasons why those errors, assuming that they are established, raise issues that are significant with respect to the unity, consistency or development of EU law. In that regard, the argument put forward by the appellant that the issues raised go beyond its appeal cannot be regarded as sufficient in the present case. Accordingly, the appellant has not complied with all the requirements set out in paragraph 11 of this order.

14      In those circumstances, it must be held that the request submitted by the appellant is not capable of establishing that the appeal raises issues that are significant with respect to the unity, consistency or development of EU law.

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

 Costs

16      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.

17      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.      Laboratorios Ern, SA, shall bear its own costs.

Luxembourg, 28 September 2022.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.