Court of Justice of the European Communities (including Court of First Instance Decisions)

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

10 October 2019 (*)

(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‑577/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 July 2019,

KID-Systeme GmbH, established in Buxtehude (Germany), represented by R. Kunze and G. Würtenberger, Rechtsanwälte and T. Wittmann, Rechtsanwältin,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Sky Ltd, established in Isleworth (United Kingdom), represented by K. Saliger, Solicitor and P. Roberts QC,

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, S. Rodin (Rapporteur) and K. Jürimäe,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, Mr Szpunar,

makes the following

Order

1        By its appeal, KID-Systeme GmbH asks the Court to set aside the judgment of the General Court of the European Union of 16 May 2019, KID-Systeme v EUIPO — Sky (SKYFi) (T‑354/18, not published, EU:T:2019:333), whereby the General Court dismissed its action seeking the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 March 2018 (Case R 106/2017-4), in relation to opposition proceedings between Sky and KID-Systeme.

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 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 Court’s Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency or development of Union law.

4        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, 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 European Union law and containing all the information necessary to enable the Court to rule on that request.

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

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

7        In particular, first, the appellant claims that the first ground of appeal raises an issue that is significant with respect to the unity, consistency or development of EU law in relation to whether the General Court may dismiss an action in its entirety and order an applicant to pay all the costs even where the General Court finds that opposition could not properly be based on an earlier EU trade mark but solely on an earlier national trade mark that was also relied on. According to the appellant, by dismissing its action notwithstanding the error committed by the Board of Appeal in its reliance on the earlier EU trade mark, the General Court infringed the principles enshrined in 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), including the principle of territoriality.

8        More specifically, the appellant considers that the General Court, on the one hand, accepted its argument that the intervener before the General Court had failed to demonstrate that it was entitled to bring opposition proceedings before the Board of Appeal with respect to the EU trade mark. On the other hand, the General Court rejected its first plea in law due to the fact that the intervener was, nonetheless, entitled to bring opposition proceedings before the Board of Appeal with respect to the national trade mark. It follows, according to the appellant, that whether an opposition is based on an EU trade mark or on a national trade mark becomes a matter of no importance, although Regulation 2017/1001 makes a clear distinction between such marks. For the General Court to act in that way is incompatible with the legal framework created by, on the one hand, Article 8(1)(b) and (2)(a)(i) of Regulation 2017/1001 and, on the other, Article 8(1)(b) and (2)(a)(ii), of that regulation.

9        Second, the appellant claims that the second ground of appeal also raises an issue that is significant with respect to the unity, consistency or development of EU law in that, by refusing to stay proceedings notwithstanding the fact that invalidity proceedings brought against the national trade mark were pending, the General Court committed an error capable of being classified as having the required significance.

10      Third and last, the appellant claims that the third ground of appeal, directed against the finding of the General Court that the appellant failed to provide ‘evidence’ in support of its request that oral proceedings be held before the Board of Appeal, raises the issue as to what conditions must be met, in accordance with Article 96 of Regulation 2017/1001, when oral proceedings are requested before the Board of Appeal. Referring to the absence of case-law of the Court on that point, the appellant claims that a clarification of the meaning of that provision would serve the interests of the development of EU law.

11      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).

12      It must also be noted that, as is apparent from the third paragraph of Article 58a of the Statute of the Court, read together with 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 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 (see, to that effect, order of 30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraphs 12 and 13).

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 (order of 30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraph 14). 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.

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.

15      In this case, as regards, first, the arguments relied on in paragraphs 7 and 8 of the present order, it must be observed that the appellant has failed to demonstrate how a breach of the principles enshrined in Regulation 2017/1001, even were it established, would raise an issue of significance with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.

16      As regards, second, the arguments relied on in paragraph 9 of the present order, it must be said that the appellant makes no mention of any provision of EU law or case-law that the General Court infringed when it declined to stay proceedings, and provides not the slightest indication of why the General Court’s decision to decline to stay proceedings is such as to raise an issue of significance with respect to the unity, consistency or development of EU law.

17      As regards, third, the arguments relied on in paragraph 10 of the present order, it must be said that the appellant does not explain the nature of the error of law that the General Court may have committed, specifically, in what way Article 96 of Regulation 2017/1001 was infringed, and fails to give any indication of the effect that such an error had on the outcome of the judgment under appeal.

18      Further, the appellant does no more than assert that the interest of the issue of law raised by that ground of appeal lies in the development of EU law and refers to the absence of case-law, while failing however to provide any other indication.

19      It must, however, be stated 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 development of EU law, and the appellant 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 the development of EU law (order of 30 September 2019, All Star v EUIPO, C‑461/19 P, not published, EU:C:2019:797, paragraph 16).

20      Moreover, as stated in paragraph 10 of this order, the appellant declares that, by its third ground of appeal, it challenges the finding made by the General Court that the appellant produced no evidence in support of its request that oral proceedings be held before the Board of Appeal. However, since that finding is one of fact, that ground of appeal cannot raise an issue that is significant with respect to the unity, consistency or development of EU law.

21      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.

22      In the light of all the foregoing, the request that the appeal be allowed to proceed must be dismissed.

 Costs

23      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.

24      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.      KID-Systeme GmbH shall bear its own costs.

Luxembourg, 10 October 2019.

*      Language of the case: English.

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