Order of 4 Jun 2020, C-72/20 (Refan Bulgaria v EUIPO), ECLI:EU:C:2020:443.

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

4 June 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 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-72/20 P,

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

Refan Bulgaria OOD, established in Trud (Bulgaria), represented by A. Ivanova, avocate,

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 R. Silva de Lapuerta, Vice-President of the Court, S. Rodin and K. Jürimäe (Rapporteur), 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, Refan Bulgaria OOD asks the Court of Justice to set aside the judgment of the General Court of the European Union of 12 December 2019, Refan Bulgaria v EUIPO (Shape of a flower) (T-747/18, not published, ‘the judgment under appeal’, EU:T:2019:849), by which the General Court dismissed its action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 September 2018 (Case R 2518/2017-1), concerning an application for registration of a three-dimensional sign consisting of the shape of a flower as an EU trade mark.

 Whether the appeal should 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 the 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 of the Court, in the situations referred to in the first paragraph of Article 58a of the 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 on the request that the appeal be allowed to proceed and its decision is to take the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant relies on two arguments by which it submits that its appeal raises issues that are significant with respect to the unity, consistency or development of EU law which, according to the appellant, justify the appeal being allowed to proceed.

7        By its first argument, the appellant submits that the General Court was wrong to confirm a decision of the Board of Appeal of EUIPO in circumstances where the Board of Appeal and the examiners failed to comply with the obligation to specify the relevant territory to be taken into account for the purpose of analysing the distinctiveness of the mark applied for.

8        By its second argument, the appellant criticises the General Court for finding that the mark applied for lacked distinctive character on the basis of a presumption which it did not substantiate and without clearly determining the characteristics of the goods covered by the mark.

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 (orders of 16 September 2019, Kiku v CPVO, 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 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 the 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 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 (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, as regards, first, the argument summarised in paragraph 7 of the present order, it must be noted that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such an argument is not, in itself, sufficient to establish that the present appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraph 11 of the present order (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17). In the present case, the appellant merely states, in essence, that the General Court was wrong to confirm a decision of the Board of Appeal of EUIPO where neither the Board of Appeal nor the examiners decided on the relevant territory to be taken into account for the purpose of analysing the distinctiveness of the mark applied for. Thus, the appellant does not set out the reasons why such an argument, even if it were well founded, raises a question that is significant with respect to the unity, consistency or development of EU law.

14      As regards, second, the argument referred to in paragraph 8 of the present order by which the appellant criticises the General Court for finding that the mark applied for lacked distinctive character on the basis of a presumption which it did not substantiate and without clearly determining the characteristics of the goods covered by the mark, it should be noted that, by that argument, the appellant seeks in actual fact to call into question the factual assessment made by the General Court of the mark’s descriptiveness (see, to that effect, order of 11 May 2016, August Storck v EUIPO, C-636/15 P, not published, EU:C:2016:342, paragraph 36). A claim that the General Court erred in its assessment of the facts 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 10 October 2019, KID-Systeme v EUIPO, C-577/19 P, not published, EU:C:2019:854, paragraph 20).

15      In addition, it should be pointed out that the appellant does not provide any indication as to why the error made by the General Court, even if it were established, raises an issue which is significant with respect to the unity, consistency or development of EU law which justifies the appeal being allowed to proceed.

16      In those circumstances, it should 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.

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.      Refan Bulgaria OOD shall bear its own costs.

Luxembourg, 4 June 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.