Order of 6 Feb 2020, C-858/19 (NHS v EUIPO)

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

6 February 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 a significant issue with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)

In Case C-858/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 November 2019,

NHS, Inc., established in Santa Cruz, California (United States), represented by P. Olson, advokat,

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, P.G. Xuereb and A. Kumin (Rapporteur), Judges,

Registrar: 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, NHS, Inc. asks the Court to set aside the judgment of the General Court of the European Union of 19 September 2019, NHS v EUIPO — HLC SB Distribution (CRUZADE) (T-378/18, not published, EU:T:2019:620, ‘the judgment under appeal’), dismissing its action against the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 April 2018 (Case R 1217/2017-5), relating to opposition proceedings between NHS and HLC SB Distribution.

 Whether the appeal should 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 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 of Justice to rule on that request.

5        In accordance with Article 170b(3) of those rules, the Court is to rule on the request that the appeal be allowed to proceed in the form of a reasoned order.

6        In support of its request that the appeal be allowed, the appellant claims that the appeal raises issues which are significant with respect to the unity, consistency and development of EU law which justify the appeal being allowed to proceed.

7        In the first place, the appellant submits that its appeal raises an issue that is significant with respect to the unity, consistency and development of EU law in that the case-law of the General Court is not consistent as regards the probative value of written statements made by distributors. In particular, it complained, in essence, that the General Court did not give sufficient weight to the written statements it had filed and questioned their objective nature and probative value because of the close ties the appellant had with the distributors behind those statements. It claims that the General Court, in paragraph 31 of the judgment under appeal, departed from the judgment of 15 February 2017, M. I. Industries v EUIPO — Natural Instinct (Natural Instinct Dog and Cat food as nature intended) (T-30/16, not published, EU:T:2017:77) and that the latter judgment is inconsistent with the judgments of 28 March 2012, Rehbein v OHIM — Dias Martinho (OUTBURST) (T-214/08, EU:T:2012:161, paragraph 38), and of 18 March 2015, Naazneen Investments v OHIM — Energy Brands (SMART WATER) (T-250/13, not published, EU:T:2015:160, paragraph 30).

8        In the second place, the appellant complains that the General Court and the Board of Appeal of EUIPO misapplied the principle of interdependence of the factors taken into account when assessing the likelihood of confusion and, in particular, the earlier findings as to the degree of similarity between the conflicting signs and the degree of similarity between the goods and services at issue.

9        In the third place, the appellant submits that the General Court did not give sufficient weight to the evidence which it had produced for the purpose of demonstrating the enhanced distinctiveness of its mark and that some of the arguments put forward were ignored by the General Court, which allegedly led the General Court to conclude, erroneously, that there was no evidence of the enhanced distinctiveness of the appellant’s mark and that there was no likelihood of confusion between the marks at issue.

10      First, it must 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 (order of 16 September 2019, Kiku v CPVO, C-444/19 P, not published, EU:C:2019:746, paragraph 11).

11      It must also be noted that, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice, read together with Article 170a(1) and Article 170b(4) of the Court’s 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 of the Court of Justice 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).

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 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 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 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

13      Therefore, 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 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, first, to the arguments referred to in paragraph 7 of the present order, it should be recalled that the assessment of the value of the evidence submitted by the parties and, in particular, of the statements provided by the appellant to prove the enhanced distinctiveness of its mark falls within the scope of a factual assessment in respect of which the General Court alone has jurisdiction. Thus, an argument relating to a factual assessment cannot raise an issue that is significant with respect to the unity, consistency or development of EU law (order of 10 October 2019, KID-Systeme v EUIPO, C-577/19 P, not published, EU:C:2019:854, paragraph 20).

15      Furthermore, it should be pointed out that the allegation that the case-law of the General Court is inconsistent with regard to the assessment of written statements as evidence, is not, in itself, sufficient to establish that this appeal raises an issue that is significant with respect to the consistency of EU law, since the appellant must, to that end, comply with all the requirements set out in paragraph 12 of the present order. It must be noted that this is not the case here.

16      Secondly, as regards the arguments referred to in paragraph 8 of this order, it must be noted that the appellant merely states that the Board of Appeal of EUIPO and the General Court erred in the application of the principle of interdependence of the factors taken into account when assessing the likelihood of confusion, without demonstrating how that error raises an issue of law that is significant for the unity, consistency or development of EU law.

17      Third, as regards the arguments set out in paragraph 9 of this order, it must be held that such arguments, which seek to call into question the factual assessment by the General Court of the evidence adduced to demonstrate the enhanced distinctiveness of the appellant’s mark, cannot raise an issue that is significant for 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).

18      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.

19      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be rejected in its entirety.

 Costs

20      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.

21      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.      NHS, Inc. shall bear its own costs.

Luxembourg, 6 February 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.