Order of 17 Oct 2022, C-383/22 (SFD v EUIPO), ECLI:EU:C:2022:799.

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

17 October 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 – Refusal to allow the appeal to proceed)

In Case C-383/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 June 2022,

SFD S.A., established in Opole (Poland), represented by T. Grucelski, adwokat,

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, 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, P. Pikamäe,

makes the following

Order

1        By its appeal, SFD S.A. asks the Court of Justice to set aside the judgment of the General Court of the European Union of 30 March 2022, SFD v EUIPO – Allmax Nutrition (ALLNUTRITION DESIGNED FOR MOTIVATION), (T-35/21, not published, EU:T:2022:173; ‘the judgment under appeal’), whereby the General Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 October 2020 (Case R 511/2020-2), relating to opposition proceedings between Allmax Nutrition and SFD.

 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        The third paragraph of Article 58a of the Statute of the Court of Justice provides that 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        Article 170a(1) of the Rules of Procedure provides that, 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 those rules, 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 submits that the single ground of its appeal, alleging infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), raises issues that are significant with respect to the development of EU law.

7        In the first place, the appellant submits that the General Court incorrectly assessed the similarity between the marks at issue, contrary to Article 8(1)(b) of Regulation No 207/2009. The General Court erred in its assessment of the weak distinctive character of the earlier marks, of the word elements common to the signs at issue, of the graphic elements of the mark applied for and of their role and impact on the comparison of the signs at issue. The General Court also incorrectly assessed the role of the advertising slogan ‘designed for motivation’ of the mark applied for in the comparison of the marks at issue and the conceptual similarity of those marks.

8        In the second place, the appellant claims that the General Court carried out a global assessment of the likelihood of confusion contrary to Article 8(1)(b) of Regulation No 207/2009. In that regard, it submits that the General Court did not take into account either the high level of attention of the relevant public or the interdependence between the low similarity of the marks at issue only in their weakly distinctive elements and that of the goods and services concerned. The General Court also erred in its assessment of the impact of the different elements of the signs at issue on the likelihood of confusion.

9        In the present case, the appellant submits that the single ground of its appeal raises an issue that is significant with respect to the development of EU law, in that the General Court manifestly misinterpreted Article 8(1)(b) of Regulation No 207/2009 and, in particular, the role of the descriptive/laudatory word elements common to the signs at issue. Furthermore, according to the appellant, the fact that the General Court attributed great importance on behalf of a highly attentive public to the weakly distinctive elements common to the signs at issue is contrary to the development of EU law.

10      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).

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 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 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C-382/21 P, EU:C:2021:1050, paragraph 21, and of 7 June 2022, Magic Box Int. Toys v EUIPO, C-194/22 P, not published, EU:C:2022:463, paragraph 14).

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 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).

13      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).

14      In the present case, with regard to the appellant’s argument, as summarised in paragraphs 7 to 9 of the present order, relating to the infringement of Article 8(1)(b) of Regulation No 207/2009, it should be noted that, although it is true that the appellant does rely on errors of law allegedly committed by the General Court, the fact remains that it confines itself to listing those errors and submitting arguments of a general nature, without setting out the specific reasons why such errors, assuming that they are established, raise an issue that is significant with respect to the unity, consistency or development of EU law that would justify allowing the appeal to proceed. Therefore, it must be held that the appellant has failed to comply with all the requirements set out in paragraph 12 of this order (see, to that effect, order of 22 February 2022, Sony Interactive Entertainment Europe v EUIPO, C-679/21 P, not published, EU:C:2022:109, paragraph 16).

15      In addition, in so far as the appellant’s line of argument seeks to call into question the factual assessments made by the General Court, it should be borne in mind that such a line of argument is not, in principle, likely to raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, orders of 10 November 2021, Comercializadora Eloro v EUIPO, C-415/21 P, not published, EU:C:2021:924, paragraph 20, and of 14 July 2022, Ignacio Carrasco v EUIPO, C-247/22 P, not published, EU:C:2022:591, paragraph 15).

16      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.

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

 Costs

18      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.

19      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.      SFD S.A. shall bear its own costs.

Luxembourg, 17 October 2022.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.