Order of 21 Oct 2020, C-386/20 (eSky Group IP v EUIPO), ECLI:EU:C:2020:849.

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

21 October 2020 (*)

(Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court – 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-386/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 August 2020,

eSky Group IP sp. z o.o., established in Warsaw (Poland), represented by P. Kurcman, radca prawny,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Gerhard Gröpel, residing in Passau (Germany), represented by N. Maenz, Rechtsanwältin,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed)

composed of R. Silva de Lapuerta, Vice-President of the Court, E. Juhász (Rapporteur) and I. Jarukaitis, 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, eSky Group IP sp. z o.o. seeks to have set aside the judgment of 10 June 2020, eSky Group IP v EUIPO – Gröpel (e) (T-646/19, not published, EU:T:2020:253; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of EUIPO of 24 July 2019 (Case R 223/2019-4), relating to opposition proceedings between Mr Gerhard Gröpel and eSky Group IP.

 The request that the appeal be allowed to proceed

2        Pursuant to 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 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, 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 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 relies on two grounds alleging, in essence, 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), as regards the assessment of the similarity of the signs at issue.

7        Thus, by the first ground of its request that the appeal be allowed to proceed, the appellant claims, in essence, the General Court misapplied Article 8(1)(b) of Regulation 2017/1001, in that it held, in paragraph 43 of the judgment under appeal, that, as regards the distinctive character of the earlier mark, it had, however, to be pointed out that it had no meaning with regard to the services at issue, that the letter ‘e’, in particular, did not in any way refer to the relevant services and that the earlier mark was therefore not descriptive or even allusive or laudatory. According to the appellant, that position led the General Court to carry out an incorrect overall assessment of the similarity of the trade marks.

8        By the second ground of its request that the appeal be allowed to proceed, the appellant claims, in essence, the General Court misapplied Article 8(1)(b) of Regulation 2017/1001 in holding, in paragraph 49 of the judgment under appeal, that ‘… contrary to what the applicant claims, although the visual aspect plays an important role in relation to the services at issue, which relate to travel arrangements, the phonetic impression cannot, however, be overlooked’, and that, ‘not only are those services capable of, inter alia, being offered for sale in travel agencies or by telephone, but they may also, as stated by EUIPO, be advertised orally on the radio or by other consumers’. According to the appellant, the General Court ignored the specificity of the letter ‘e’ used for all electronic services, where it is indicative of their electronic nature, and, in finding that the letter ‘e’ had distinctive character for the services at issue, marginalised the differences in the graphic design of the two marks at issue, which, in view of the descriptive character of the letter ‘e’, becomes crucial. In addition, the appellant submits that the General Court’s position is in contradiction with the case-law of the General Court as set out, inter alia, in the judgment of 24 January 2012, El Corte Inglés v OHIM – Ruan (B) (T-593/10, not published, EU:T:2012:25).

9        As a preliminary point, 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 (orders of 16 September 2019, Kiku v OCVV, C-444/19 P, not published, EU:C:2019:746, paragraph 11, and of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 13).

10      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, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14 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 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

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

13      In the present case, the appellant’s request that the appeal be allowed to proceed is confined to setting out the grounds of appeal, without in any way claiming and, a fortiori, demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.

14      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.

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 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.

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.      eSky Group IP sp. z o.o. shall bear its own costs.

Luxembourg, 21 October 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.