Order of 12 Nov 2021, C-465/21 (König Ludwig International v EUIPO), ECLI:EU:C:2021:922.

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

12 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 – Appeal not allowed to proceed)

In Case C-465/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 July 2021,

König Ludwig International GmbH & Co. KG, established in Geltendorf (Germany), represented by O. Spuhler and J. Stock, Rechtsanwälte,

applicant,

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, N. Jääskinen and M. Safjan (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, König Ludwig International GmbH & Co. KG seeks to have set aside the order of the General Court of the European Union of 31 May 2021, König Ludwig International v EUIPO (Royal Bavarian Beer) (T-332/20, not published, EU:T:2021:304; ‘the order under appeal’), by which that court dismissed the action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 April 2020 (Case R 1714/2019-4), concerning the international registration designating the European Union of the word mark Royal Bavarian Beer.

 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, 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 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 relies on three arguments, by which it submits that its appeal raises issues that are significant with respect to the unity, consistency or development of EU law, justifying, in its view, the appeal being allowed to proceed.

7        By its first argument, the appellant criticises the General Court for not having taken into consideration the historical context of the word mark Royal Bavarian Beer applied for when assessing its distinctive and descriptive character, within the meaning of Article 7(1)(b) and (c) 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). More particularly, the General Court did not take account of the fact that the appellant is authorised, because of its link with the Bavarian royal family, to use the words ‘Royal Bavarian Beer’ under competition law and consumer protection law.

8        In addition, the appellant submits that the order under appeal raises a question relating to the unity of the EU trade mark referred to in Article 1(2) of Regulation 2017/1001, in that the General Court infringed that unity by stating that the historical context relied on by the appellant did not concern Member States other than the Federal Republic of Germany.

9        By its second argument, the appellant complains that the General Court infringed its right to be heard by stating, in paragraph 46 of the order under appeal, that it had not produced any evidence to establish that the relevant public would perceive the mark applied for as designating goods manufactured by it because it was run by a member of the Bavarian royal family. However, the General Court did not give the appellant the opportunity to submit such evidence. Furthermore, the appellant takes the view that the issue of actual use of the mark applied for was not the subject of the proceedings before EUIPO and that it had therefore not been able to produce evidence or take a position in that regard.

10      By its third argument, the appellant submits that the General Court, in so far as it merely found that EUIPO had examined and rejected the appellant’s arguments, infringed the appellant’s right to be heard and misapplied Article 94(1) of Regulation 2017/1001 and Articles 6 and 47 of the Charter of Fundamental Rights of the European Union.

11      According to the appellant, the issues raised by the second and third arguments are important for the proceedings before EUIPO and the General Court and for determining the burden of proof when assessing the absolute grounds for refusal of trade mark applications.

12      At the outset, 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).

13      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 170b(1) and Article 170c(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 (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14 and the case-law cited).

14      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 detail and equal clarity 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 disregarded 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 a failure to have regard to 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).

15      A request that the 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).

16      In the present case, as regards, in the first place, the line of argument set out in paragraphs 7 and 8 of the present order, it is clear that the appellant seeks, in essence, to call into question the factual assessment made by the General Court when it assessed the descriptive character of the mark applied for. Such an argument, however, cannot demonstrate that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 24 March 2021, smart things solutions v EUIPO, C-681/20 P, not published, EU:C:2021:234, paragraph 15 and the case-law cited).

17      In the second place, as regards the arguments set out in paragraphs 9 to 11 of the present order, which, being closely linked, may be examined together, the appellant submits that it is necessary to determine the scope of the burden of proof and to what extent evidence must be adduced before EUIPO in proceedings for registration of a trade mark. In that regard, it should be noted that although the appellant identifies the point of law that that argument raises, it does not demonstrate, to the requisite legal standard, how that issue is significant with respect to the unity, consistency or development of EU law.

18      In order to demonstrate that that is the case, it is necessary to establish both the existence and the significance of such an issue by means of concrete evidence specific to the particular case, and not simply by means of arguments of a general nature (order of 4 June 2020, Société des produits Nestlé v Amigüitos pets & life and EUIPO, C-97/20 P, not published, EU:C:2020:442, paragraph 18 and the case-law cited).

19      The appellant merely asserts that the issue is significant for the proceedings before EUIPO and the General Court and as regards the issue of the burden of proof when assessing the absolute grounds for refusal of trade mark applications, without, however, providing concrete arguments specific to the case in question in order to prove how that issue is significant with respect to the unity, consistency or development of EU law.

20      In those circumstances, it must be stated 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.

21      In the light of all of the foregoing considerations, the request that the appeal be allowed to proceed must be refused.

 Costs

22      Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

23      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before that party 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.      König Ludwig International GmbH & Co. KG shall bear its own costs.

Luxembourg, 12 November 2021.

A. Calot Escobar

L. Bay Larsen

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.