Corte di giustizia UE n. 2028/2019

[OSCURATO:PERSONA] (Chamber determining whether appeals may proceed) 10 September 2019 ( * ) (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 — Appeal not demonstrating the significance of an issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed) [OSCURATO:PERSONA] C‑375/19 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 13 May 2019, [OSCURATO:PERSONA] GmbH, established in Aschheim (Germany), represented by A. Bayer, Rechtsanwalt, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] BV, established in ’s-Hertogenbosch (Netherlands), represented by G. Van den Hout, advocaat, intervener at first instance, [OSCURATO:PERSONA] (Chamber determining whether appeals may proceed), composed of R. Silva de [OSCURATO:PERSONA], [OSCURATO:PERSONA][OSCURATO:PERSONA] of the [OSCURATO:PERSONA], F. Biltgen, and J. Malenovský, Judge-Rapporteur, after hearing the [OSCURATO:PERSONA], M. Szpunar, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] GmbH seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 13 March 2019, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] (supr) (T‑297/18, not published, ‘the judgment under appeal’, EU:T:2019:160), 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 20 February 2018 ([OSCURATO:PERSONA] R 2028/2017-5), relating to invalidity proceedings between [OSCURATO:PERSONA] BV and [OSCURATO:PERSONA] GmbH. The request that the appeal be allowed to proceed 2 Pursuant to 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 [OSCURATO:PERSONA] 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 The third paragraph of [OSCURATO:PERSONA] 58a of that statute provides, in such cases, 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 [OSCURATO:PERSONA], 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, 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(3) of those rules, the [OSCURATO:PERSONA] is to rule on the request that the appeal be allowed to proceed in the form of a reasoned order. 6 In the present case, by its appeal, the appellant puts forward a single ground of appeal alleging an error of law in applying [OSCURATO:PERSONA] 8(1)(b) 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), and, more specifically, in assessing the existence of a likelihood of confusion. 7 In support of its request that the appeal be allowed to proceed, the appellant claims, in essence, that the [OSCURATO:PERSONA] departed without justification, in paragraphs 32, 37, 54 and 61 of the judgment under appeal, from some of its earlier judgments relating to the application of [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 and from the case-law principles set out in those judgments, and that, therefore, the judgment under appeal must be regarded as undermining the consistency and development of EU law. 8 In that regard, it must be stated at the outset that the appellant does not in any way demonstrate that the [OSCURATO:PERSONA] departed without justification, in the judgment under appeal, from some of its earlier judgments relating to the application of [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 and from the case-law principles set out in those judgments. 9 [OSCURATO:PERSONA] provided a clear, detailed and nuanced statement, in paragraphs 30 to 32, 37, 53 to 55 and 61 to 63 of the judgment under appeal, of the reasons for its assessment of the signs at issue in the present case in the light of [OSCURATO:PERSONA] 8(1)(b) of Regulation (EU) 2017/1001 and the various case-law principles relevant in that regard. In that context, the [OSCURATO:PERSONA] also specifically explained the scope to be given to the various case-law principles in question, taking into account the circumstances of the present case. Lastly, the [OSCURATO:PERSONA] highlighted the various factual elements distinguishing the signs at issue in the present case from those at issue in the cases that gave rise to the judgments relied on by the appellant. 10 Consequently, the premiss relied on by the appellant in order to claim that the judgment under appeal undermines the consistency and development of EU law is absent. 11 In those circumstances, it must be concluded that the argument put forward 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. 12 In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be rejected. Costs 13 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. 14 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 [OSCURATO:PERSONA] (Chamber determining whether appeals may proceed) hereby orders: 1. The appeal is not allowed to proceed. 2. [OSCURATO:PERSONA] GmbH shall bear its own costs. Luxembourg, 10 September 2019. A. [OSCURATO:PERSONA] R. Silva de [OSCURATO:PERSONA] of the Chamber determining whether appeals may proceed * Language of the case: English.