Order of 11 Feb 2020, C-887/19 (Rutzinger-Kurpas v EUIPO), ECLI:EU:C:2020:91.

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

11 February 2020 (*)

(Appeal — EU trade mark — Whether appeals may be allowed to proceed — Article 170b of the Court’s Rules of Procedure — Request failing to demonstrate a significant issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)

In Case C-887/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 December 2019,

Susanne Rutzinger-Kurpas, residing in Spiegelau (Germany), represented by F. Lichtnecker, Rechtsanwalt,

appellant,

The other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Vafo Praha s.r.o., established in Chrášt’any (Czech Republic), represented by M. Vojáček, advokát,

applicant at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, L.S. Rossi and F. Biltgen (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 her appeal, Ms Susanne Rutzinger-Kurpas asks the Court of Justice to set aside the judgment of the General Court of the European Union of 3 October 2019, Vafo Praha v EUIPO — Rutzinger-Kurpas (Meatlove) (T-491/18, not published, EU:T:2019:726; ‘the judgment under appeal’) by which the General Court annulled the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 June 2018 (Case R 264/2018-4), concerning opposition proceedings between Vafo Praha and Ms Rutzinger-Kurpas.

 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 first decides that it should be allowed to do so.

3        The third paragraph of Article 58a of the Statute of the Court of Justice provides that 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(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 her request that the appeal be allowed to proceed, the appellant relies on two arguments that her appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, which justifies the appeal being allowed to proceed.

7        By her first argument, the appellant submits that the General Court infringed various legal principles and Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), in that it found there to be a high degree of conceptual similarity between the earlier mark, carnilove, and the mark applied for, Meatlove, without taking into account their respective linguistic characteristics. The appellant takes the view that that finding is contrary to the earlier case-law of the General Court, namely the judgments of 15 October 2014, El Corte Inglés v OHIM — English Cut (The English Cut) (T-515/12, not published, EU:T:2014:882, paragraphs 26 to 32), of 16 December 2015, Rotkäppchen-Mumm Sektkellereien v OHIM — Ruiz Moncayo (RED RIDING HOOD) (T-128/15, not published, EU:T:2015:977, paragraphs 28 to 40), and of 26 May 2016, Aldi Einkauf v EUIPO — Dyado Liben (Casale Fresco) (T-254/15, not published, EU:T:2016:319, paragraph 28).

8        By her second argument, the appellant submits that the General Court infringed the principle of legal certainty and Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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 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 170b(1) and Article 170c(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 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 (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 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 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).

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, in the first place, the argument, set out in paragraph 7 of the present order, that the General Court infringed various principles of law and Article 8(1)(b) of Regulation No 207/2009, in that it found that there was a high degree of conceptual similarity between the marks at issue, it should be observed, first, that the appellant has failed to cite specifically the principles of law or the provisions of EU law enshrining such principles that the General Court allegedly infringed, and has failed to provide the slightest indication as to why the infringement of those principles, even if it were established, raises an issue that is significant with respect to the unity, consistency or development of EU law which justifies that the appeal be allowed to proceed.

14      Secondly, it should be borne in mind that the General Court’s assessment of the conceptual similarity between the marks at issue is a factual analysis (see, to that effect, judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C-254/09 P, EU:C:2010:488, paragraph 50). A claim that the General Court erred in its assessment of the facts cannot state 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      Lastly, it must be pointed out that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such arguments are not, in themselves, sufficient to establish that that 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 (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17 and the case-law cited). In the present case, the appellant, without complying with such requirements, merely asserts that the General Court infringed the relevant case-law of the Court.

16      As regards, in the second place, the argument referred to in paragraph 8 of the present order, alleging that the General Court infringed the principle of legal certainty and Article 17 of the Charter, suffice it to note that the applicant has failed to explain what that alleged infringement consists in or to demonstrate how the alleged infringement of the aforementioned principle and provision, were it established, raises an issue that is significant with respect to the unity, consistency or development of EU law which justifies that the appeal be allowed to proceed.

17      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.

18      In the light of all the foregoing, the appeal should not be allowed to proceed.

 Costs

19      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.

20      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.      Ms Susanne Rutzinger-Kurpas shall bear her own costs.

Luxembourg, 11 February 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.