Corte di giustizia UE n. 1956/2025

[OSCURATO:PERSONA] (Chamber determining whether appeals may proceed) 12 June 2025 ( * ) ( Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – [OSCURATO:PERSONA] 170b of the Rules of Procedure of the [OSCURATO:PERSONA] 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 ) [OSCURATO:PERSONA] C‑21/25 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 16 January 2025, Puma SE, established in Herzogenaurach ([OSCURATO:PERSONA]), represented by M. Schunke and P. Trieb, Rechtsanwälte, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] (Chamber determining whether appeals may proceed), composed of T. von [OSCURATO:PERSONA], [OSCURATO:PERSONA][OSCURATO:PERSONA] of the [OSCURATO:PERSONA], N. Jääskinen and A. Arabadjiev (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], A. Biondi, makes the following [OSCURATO:PERSONA] 1 By its appeal, Puma SE seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 November 2024, Puma v EUIPO – [OSCURATO:PERSONA] (Representation of an emblem) (T‑544/23, EU:T:2024:787), by which the [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 16 June 2023 ([OSCURATO:PERSONA] R 1956/2022-4), concerning opposition proceedings between Puma and [OSCURATO:PERSONA]. The request that the appeal be allowed to proceed 2 [OSCURATO:PERSONA] the first paragraph of [OSCURATO:PERSONA] 58a of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal brought against a decision of the [OSCURATO:PERSONA] concerning a decision of an independent board of appeal of EUIPO is not to proceed unless the [OSCURATO:PERSONA] of Justice first decides that it should be allowed to do so. 3 In accordance with the third paragraph of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law. 4 [OSCURATO:PERSONA] 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] of Justice to rule on that request. 5 In accordance with [OSCURATO:PERSONA] 170b(1) and (3) of the Rules of Procedure, the [OSCURATO:PERSONA] of Justice is to rule as soon as possible on the request that the appeal be allowed to proceed; that decision is to take 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 single ground of its appeal, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) and [OSCURATO:PERSONA] 8(5) of Regulation (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1), raises an issue that is significant with respect to the unity, consistency or development of EU law. 7 In particular, the appellant submits, in essence, relying on the case-law resulting from, inter alia, the judgments of 22 June 1999, [OSCURATO:PERSONA] (C‑342/97, EU:C:1999:323, paragraph 27), of 12 June 2007, OHIM v Shaker (C‑334/05 P, EU:C:2007:333, paragraph 35), of 23 October 2002, [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑6/01, EU:T:2002:261, paragraph 30), and of 9 July 2003, Laboratorios RTB v OHIM – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑162/01, EU:T:2003:199, paragraphs 30 to 33), that the [OSCURATO:PERSONA] incorrectly applied the principles relating to the comparison of signs set out in that case-law and, therefore, erred in finding that the signs at issue were dissimilar. In addition, the appellant submits that the [OSCURATO:PERSONA] departed from EUIPO’s decision-making practice. 8 It argues that the [OSCURATO:PERSONA] based its assessment on a detailed analysis of the signs at issue and not on the overall impression that the mark creates for the relevant public, even though the average consumer does not engage in an analysis of the various details of a mark and must rely on his or her imperfect recollection of that mark. In its assessment of the visual similarity of the signs at issue, the [OSCURATO:PERSONA] disregarded the fact that the frame surrounding the contested sign resembles an emblem and will therefore be perceived by the average consumer as a purely decorative element emphasising the central element, namely the black stripe inside that frame. 9 In that regard, the appellant submits that, contrary to what the [OSCURATO:PERSONA] held in its judgment of 6 November 2024, PUMA v EUIPO – [OSCURATO:PERSONA] (Representation of an emblem) (T‑544/23, EU:T:2024:787), the only difference which the relevant public will perceive between the signs at issue is the fact that the central element of the mark applied for is framed; that central element will appear, for that public, to be identical or highly similar to the earlier marks. Thus, the only difference perceptible by that public is not sufficient to establish dissimilarity between those signs. To argue otherwise would be tantamount to arguing that it is possible to register any sign which is similar to an earlier mark solely on the ground that it is surrounded by a frame; an approach which would lead to trade mark protection ‘ ad absurdum ’. 10 According to the appellant, it is therefore necessary, for the purposes of the unity, consistency and development of EU law, to clarify that the average consumer relies on the overall impression given by the signs at issue in a given case and does not carry out a direct comparison of those signs, with the result that minor differences are not able to lead to an overall dissimilarity between two signs, in particular where a sign which is almost identical or highly similar to an earlier sign is merely decorated with a frame element. Findings of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] , C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 6 March 2025, Dekoback v EUIPO , C‑775/24 P, EU:C:2025:169, paragraph 11). 12 Furthermore, as is apparent from the third paragraph of [OSCURATO:PERSONA] 58a of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], read together with [OSCURATO:PERSONA] 170a(1) and [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 58a of the Statute whereby the [OSCURATO:PERSONA] determines whether an appeal should be allowed to proceed is to restrict review by the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] in an appeal (orders of 10 December 2021, EUIPO v The KaiKai [OSCURATO:PERSONA] , C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 6 March 2025, Dekoback v EUIPO , C‑775/24 P, EU:C:2025:169, paragraph 12). 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 [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] of Justice or the [OSCURATO:PERSONA] alleged to have been infringed, and, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai [OSCURATO:PERSONA] , C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 6 March 2025, Dekoback v EUIPO , C‑775/24 P, EU:C:2025:169, paragraph 13). 14 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 (orders of 24 October 2019, Porsche v EUIPO , C‑613/19 P, EU:C:2019:905, paragraph 16, and of 6 March 2025, Dekoback v EUIPO , C‑775/24 P, EU:C:2025:169, paragraph 14). 15 In the present case, as regards, in the first place, the appellant’s line of argument, summarised in paragraph 7 of the present order, alleging that the [OSCURATO:PERSONA] failed to have regard to the principles arising from the case-law of the [OSCURATO:PERSONA] of Justice and its own case-law, it must be stated that such a line of argument is not, in itself, sufficient to establish, in accordance with the burden of proof which lies with the person requesting that an appeal be allowed to proceed, that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. To that end, the person making the request must comply with all the requirements set out in paragraph 13 of the present order (see, to that effect, order of 19 November 2024, [OSCURATO:PERSONA] v EUIPO , C‑538/24 P, EU:C:2024:969, paragraph 17 and the case-law cited). However, it must be stated that, although the present request that the appeal be allowed to proceed refers to paragraphs of some judgments of the [OSCURATO:PERSONA] of Justice and of the [OSCURATO:PERSONA], it does not provide sufficient information concerning the similarity of the situations described in those judgments to which it refers, which would make it possible to establish the existence of the contradiction relied on. Nor does it provide any information as to the concrete reasons why such a contradiction would raise an issue that is significant with respect to the unity, consistency or development of EU law. 16 In the second place, as regards the line of argument, also referred to in paragraph 7 of the present order, by which the appellant claims that the [OSCURATO:PERSONA] disregarded EUIPO’s decision-making practice, it is sufficient to note that the legality of the decisions of the Boards of Appeal of EUIPO must be assessed solely on the basis of Regulation 2017/1001, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice of the adjudicating bodies of EUIPO, with the result that such alleged disregard cannot raise an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 7 February 2024, Groz-Beckert v EUIPO , C‑691/23 P, EU:C:2024:166, paragraph 15 and the case-law cited). 17 In the third and last place, as regards the line of argument set out in paragraphs 8 to 10 of the present order, relating to the assessment of the visual similarity of the signs at issue, it should be noted that, although the appellant identifies errors of law allegedly committed by the [OSCURATO:PERSONA], it neither explains to the requisite standard nor, in any event, demonstrates how such errors of law, even if established, would raise issues that are significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed; an approach which does not satisfy the requirements set out in paragraph 13 of the present order (see, to that effect, order of 11 October 2023, [OSCURATO:PERSONA] v EUIPO , C‑342/23 P, EU:C:2023:761, paragraph 17 and the case-law cited). 18 In any event, it must be stated that, by such a line of argument, the appellant is in fact seeking to call into question the factual assessment made by the [OSCURATO:PERSONA] relating to the similarity of the signs at issue; an approach which cannot demonstrate 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 (see, to that effect, order of 4 October 2024, Converso v Verla-[OSCURATO:PERSONA] and EUIPO , C‑444/24 P, EU:C:2024:873, paragraph 12 and the case-law cited). 19 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. 20 In the light of the foregoing considerations, the appeal should not be allowed to proceed. Costs 21 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. 22 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 [OSCURATO:PERSONA] (Chamber determining whether appeals may proceed) hereby orders: 1. The appeal is not allowed to proceed. 2. Puma SE shall bear its own costs. Luxembourg, 12 June 2025. A. [OSCURATO:PERSONA] T. von [OSCURATO:PERSONA] of the Chamber determining whether appeals may proceed * Language of the case: English.