Article 17 - Right to property
Key facts of the case:
Appeal – EU trade mark – Whether appeals may be allowed to proceed – Article 170b of the Rules of Procedure of the Court – Request failing to demonstrate a significant issue with respect to the unity, consistency or development of EU law – Appeal not allowed to proceed.
Outcome of the case:
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
11) By the second argument of its request that the appeal be allowed to proceed, the appellant submits that the second and third grounds of the appeal raise issues of law that are significant, in particular, with respect to the consistency of EU law. By infringing the ‘what you see is what you get’ rule, the General Court, in addition to the representation of the mark, required the application to be accompanied by further elements or descriptions in order to restrict the scope of protection of a figurative mark to its graphic representation. Thus, it is impossible for proprietors of figurative marks to know what is required in order to file an application for registration with EUIPO. Furthermore, in the light of the fact that descriptions accompanying representations of figurative marks are no longer permissible under Article 3 of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Implementing Regulation (EU) 2017/1431 (OJ 2018 L 104, p. 37), and the EUIPO Guidelines, the judgment under appeal makes it impossible for the proprietors of figurative marks comparable to that of the appellant to register their marks and thus to protect their intellectual property rights, contrary to Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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13) By the third ground of its appeal, the appellant claims that by holding that it should have filed that mark accompanied by a description, the General Court misapplied the ‘what you see is what you get’ rule, of the case-law of the Court of Justice, in particular paragraph 57 of the judgment of 6 March 2014, Pi-Design and Others v Yoshida Metal Industry (C‑337/12 P to C‑340/12 P, not published, EU:C:2014:129), and its own case-law, in particular paragraphs 27 and 30 of the judgment of 19 June 2019, adidas v EUIPO — Shoe Branding Europe (Representation of three parallel stripes) (T‑307/17, EU:T:2019:427). Furthermore, by infringing Article 3 of Regulation 2018/626 and the EUIPO Guidelines, the General Court prevents the appellant from registering its figurative mark, which also entails an infringement of Article 17(2) of the Charter.
19) In the present case, by its arguments, the appellant claims that the significance of the issues raised in the context of its appeal results, first, from an alleged contradiction between, on the one hand, paragraph 36 of the judgment under appeal and, on the other, in particular, paragraph 57 of the judgment of 6 March 2014, Pi-Design and Others v Yoshida Metal Industry (C‑337/12 P to C‑340/12 P, not published, EU:C:2014:129) and paragraph 37 of the judgment of 19 June 2012, Chartered Institute of Patent Attorneys (C‑307/10, EU:C:2012:361). It results, second, from an alleged contradiction between, on the one hand, paragraph 36 of the judgment under appeal, and, on the other, in particular, paragraphs 69 and 71 of the judgment of 30 November 2017, Red Bull v EUIPO — Optimum Mark (Combination of the colours blue and silver) (T‑101/15 and T‑102/15, EU:T:2017:852) and paragraphs 27 and 30 of the judgment of 19 June 2019, adidas v EUIPO — Shoe Branding Europe (Representation of three parallel stripes) (T‑307/17, EU:T:2019:427). The appellant further claims that, in so doing, the General Court infringed the ‘what you see is what you get’ rule. Furthermore, the General Court also infringed Article 3 of Regulation 2018/626 and Article 17(2) of the Charter. It results, third, from the novelty of the issues raised by its appeal.
21) Although the appellant identifies the paragraphs of the judgment under appeal and those of the decisions of the Court of Justice and the General Court which allegedly have been misapplied, it does not provide any information on the similarity of the situations referred to in the judgments cited in paragraph 19 of this order, capable of establishing the existence of the contradiction relied on (see, to that effect, order of 13 February 2020, Conféderation nationale du Crédit Mutuel v EUIPO, C‑867/19 P, not published, EU:C:2020:103, paragraph 18), nor, consequently, the alleged resulting infringement of Article 17(2) of the Charter.
27) Second, as regards the line of argument concerning the infringement of Article 3 of Regulation 2018/626, which entails an infringement of Article 17(2) of the Charter, it suffices to note that, at the date of filing the application for registration, that is to say on 16 December 2016, which is the relevant time for determining which are the provisions governing the present dispute (see, to that effect, judgment of 12 December 2019, EUIPO v Wajos, C‑783/18 P, not published, EU:C:2019:1073, paragraph 2), that regulation was not yet in force. Therefore, that line of argument cannot demonstrate that the second argument raises an issue that is significant with respect to the consistency of EU law.
