Order of 8 Jan 2025, C-577/24 (Peikko Group v EUIPO), ECLI:EU:C:2025:10.

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

8 January 2025 (*)

( 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 not demonstrating that an issue is significant with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed )

In Case C-577/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 August 2024,

Peikko Group Oy, established in Lahti (Finland), represented by P. Eskola, asianajaja,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Anstar Oy, established in Villähde (Finland),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of T. von Danwitz, Vice-President of the Court, A. Kumin and I. Ziemele (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1        By its appeal, Peikko Group Oy asks the Court of Justice to set aside the judgment of the General Court of the European Union of 26 June 2024, Peikko Group v EUIPO – Anstar (Shape of metal beams for construction) (T-192/23, EU:T:2024:420; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 February 2023 (Case R 2180/2021-5), concerning invalidity proceedings between Peikko Group and Anstar 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 as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.

 Arguments of the appellant

6        In support of its request that the appeal be allowed to proceed, the appellant submits that the sole ground of its appeal, alleging infringement of Article 7(1)(e)(ii) 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), read in conjunction with Article 59(1)(a) of that regulation, raises issues that are significant with respect to the unity, consistency or development of EU law.

7        Accordingly, first of all, the appellant claims that the judgment under appeal is inconsistent with the case-law of the Court of Justice relating to Article 7(1)(e)(ii) of Regulation 2017/1001, read in conjunction with Article 59(1)(a) of that regulation, since the General Court relied only on the appellant’s European patent, which resembles the sign which EUIPO had declared invalid, and on the appellant’s technical manual for a similar type of product. However, it argues, it follows from legal practice that the existence of that patent, which relates to that sign in a certain way, does not prevent that patent from being protected ‘under Article 7(1)(e)(ii) of that regulation’.

8        In that context, the appellant takes the view that neither the Boards of Appeal of EUIPO nor the General Court is capable, in any event, of correctly interpreting technical materials, such as the appellant’s European patent and technical manual. Accordingly, the General Court’s finding that those materials are objective and reliable sources is arguable. Moreover, the taking into account, by the General Court, of those materials led it to reach incorrect conclusions. In addition, the General Court wrongly ignored the opinions of technical experts which it should have taken into account in its reasoning.

9        Next, in its view, the relevant case-law of the Court does not provide a clear answer to various significant issues relating to goods which perform technical functions, which makes it impossible to guarantee the unity and consistent application of EU law. In that respect, first, it is not specified in what way the shape or the characteristics of the good are necessary for obtaining technical results. Secondly, the way in which the essential characteristics of a three-dimensional sign, such as the one declared invalid by EUIPO, must be ascertained remains to be explained. Thirdly, the manner of distinguishing the essential characteristics of that sign from its non-essential characteristics and the conditions in which those essential characteristics must be regarded as necessary should be determined.

10      Lastly, the appellant is of the opinion that the General Court, by finding, in its ‘technical analysis’ concerning the essential characteristics of the sign in question and their purpose, that the round shape of the openings on the sides of the beam was not an arbitrary feature, reached an unfounded and incorrect conclusion.

 Findings of the Court

11      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 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 14).

12      Furthermore, as is apparent 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 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 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 15).

13      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 (order of 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 16).

14      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph 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 4 October 2024, Puma v EUIPO, C-503/24 P, EU:C:2024:871, paragraph 17).

15      In the present case, in the first place, as regards the argument set out in paragraph 7 above, alleging that the General Court failed to have regard to the case-law of the Court of Justice relating to Article 7(1)(e)(ii) of Regulation 2017/1001, read in conjunction with Article 59 of that regulation, it must be pointed out that, as the burden of proof rests on the appellant requesting that an appeal be allowed to proceed and as that appellant must comply, to that end, with all the requirements set out in paragraph 13 above, such an argument is not, in itself, sufficient to establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. The appellant does not indicate which paragraphs of the judgment under appeal or of the allegedly disregarded decisions of the Court of Justice are concerned, and it does not provide sufficient information as to the similarity of the situations referred to in the case-law of the Court of Justice relied upon with the situation at issue in the judgment under appeal. Accordingly, the appellant fails to establish the existence of the contradiction relied on. Lastly, in any event, the appellant does not state the reasons why the alleged contradiction with that case-law raises, in its view, an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 28 January 2021, Kaminski v EUIPO, C-626/20 P, EU:C:2021:83, paragraph 15).

16      In the second place, as regards the line of argument set out in paragraph 8 above, it is sufficient to note that the appellant merely raises errors of law allegedly committed by the General Court, without sufficiently explaining or, in any event, demonstrating how such errors, assuming they are established, raise issues which are significant with respect to the unity and consistency of EU law which would justify allowing the appeal to proceed (see order of 24 April 2024, Feed v EUIPO, C-19/24 P, EU:C:2024:369, paragraph 13). Accordingly, those arguments do not meet the requirements set out in paragraph 13 above.

17      In the third place, as regards the line of argument summarised in paragraph 9 above, it is sufficient to recall that the fact that an issue of law has not been examined by the Court does not thereby mean that that issue is necessarily one of significance with respect to the unity, consistency or development of EU law, and the person requesting that an appeal be allowed to proceed remains bound to demonstrate that significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant in relation to those criteria (see, to that effect, order of 27 October 2023, Wallmax v EUIPO, C-495/23 P, EU:C:2023:824, paragraph 18 and the case-law cited).

18      However, such a demonstration is clearly not apparent from the present request, the appellant merely making a general assertion that the Court has not yet ruled on the issues concerned.

19      In the fourth and last place, in so far as the line of argument summarised in paragraph 10 of the present order is intended to call into question factual assessments made by the General Court, it should be borne in mind that that 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 (order of 24 September 2024, Puma v EUIPO, C-355/24 P, EU:C:2024:784, paragraph 22).

20      In those circumstances, it must be held that the request that the appeal be allowed to proceed submitted by the appellant is not such as to establish 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 the foregoing considerations, the appeal should not be allowed to proceed.

 Costs

22      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.

23      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.      Peikko Group Oy shall bear its own costs.

Luxembourg, 8 January 2025.

A. Calot Escobar

T. von Danwitz

Registrar

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.