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

14 June 2024 (*)

(Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court 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)

In Case C‑165/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 March 2024,

OmniActive Health Technologies Ltd, established in Mumbai (India), represented by M. Hawkins, abogado, and by C. Zimmer and T. Dolde, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Pharmaselect International Beteiligungs GmbH, established in Vienna (Austria),

intervener at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of L. Bay Larsen, Vice-President of the Court, O. Spineanu-Matei and L.S. Rossi (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 its appeal, OmniActive Health Technologies Ltd asks the Court of Justice to set aside in part the judgment of the General Court of the European Union of 20 December 2023, Pharmaselect International and OmniActive Health Technologies v EUIPO – OmniActive Health Technologies and Pharmaselect International (LUTAMAX) (T‑221/22 and T‑242/22, EU:T:2023:858; ‘the judgment under appeal’) by which the General Court dismissed in part Pharmaselect International Beteiligungs GmbH’s action in Case T‑221/22 and, in its entirety, OmniActive Health Technologies’ action in Case T‑242/22, seeking the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUPO) of 24 February 2022 (Joined Cases R 524/2021-1 and R 649/2021-1), relating to revocation proceedings between OmniActive Health Technologies and Pharmaselect International Beteiligungs.

 The request that the appeal 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 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 Rules of Procedure of the Court of Justice, 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, in the situations referred to in the first paragraph of Article 58a of that 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(1) and (3) of the Rules of Procedure, the Court’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible in the form of a reasoned order.

6        In support of its request that the appeal be allowed to proceed, the appellant claims that the two grounds of its appeal, alleging infringement of Article 58(1)(a) and (2) of 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), raise issues that are significant with respect to the unity, consistency or development of EU law.

7        By its first ground of appeal, the appellant submits that the General Court, in its assessment of genuine use of the contested mark, incorrectly applied Article 58(1)(a) of Regulation 2017/1001. In particular, the General Court found, in paragraphs 52 and 55 of the judgment under appeal, that the failure to take into account Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51) had no bearing on the merits of the Board of Appeal’s conclusion that the product at issue falls within the category of ‘dietary supplements adapted for medical or dietetic use’ since the definition of the concept of ‘dietary supplements’ which had been adopted was very similar to that resulting from Article 2(a) of that directive.

8        In so doing, according to the appellant, the General Court considered only Article 2(a), taken in isolation, to be relevant and applicable, and not that directive in its entirety, and in particular Article 6(2) thereof. However, the unity of EU law requires that legal acts be applied in their entirety, even when they are applied outside their primary scope, in order to avoid inconsistencies. Moreover, the question whether EU legal acts are to be considered in their entirety and interpreted in the light of each of their provisions goes beyond the scope of the present proceedings and that of trade mark law.

9        Furthermore, the appellant argues that such an error of law has significant implications for the unity, consistency, and development of EU law, given that genuine use of a trade mark on the market depends significantly on the relevant legal acts that govern the marketing, labelling and distribution of those goods, in particular in the health and nutrition sector.

10      By its second ground of appeal, the appellant claims that the General Court, in finding that ‘dietary supplements adapted for medical or dietetic use’ may not be divided into subcategories, erred in its application of Article 58(2) of Regulation 2017/1001 and thus disregarded the principle that a trade mark is to be maintained only to the extent that it is genuinely used on the market. Since the market for dietary supplements is a very diversified, growing market, competitors’ ability to differentiate their goods based on specific subcategories of dietary supplements is crucial for fostering innovation, meeting consumer demands, and ensuring fair competition.

11      Moreover, the appellant claims that the decision adopted by the General Court adversely affects the unity of EU law and constitutes a source of legal uncertainty. According to the appellant, ignoring the fact that dietary supplements may be characterised by their active ingredient is contrary to Article 6(3) of Directive 2002/46, to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and to the lists of terms established by the Harmonised Offices.

12      Last, the appellant submits that the issue of establishing subcategories for dietary supplements is a general issue which requires a decision by the Court of Justice, since it concerns fair competition, predictability and clarity of EU law. It states in that regard that the interpretation given by the General Court in the judgment under appeal would hinder the development of the market for dietary supplements, impede competition, and limit consumer choice, placing that market at a disadvantage compared with that of pharmaceutical preparations, in respect of which the case-law establishes subcategories according to the therapeutic indication of the product.

13      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 Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18).

14      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 170a(1) and Article 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 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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).

15      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 General Court, 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 Court of Justice or the General Court 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 Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20).

16      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 8 May 2024, Wyrębski v QC and Others, C‑689/23 P, EU:C:2024:397, paragraph 21).

17      In the present case, as regards, in the first place, the arguments set out in paragraphs 7 to 9 of the present order, relating to the infringement of Article 58(1)(a) of Regulation 2017/1001 in the assessment of genuine use of the contested mark, it must be noted that, although the appellant describes the error of law allegedly made by the General Court, it does not explain, to the requisite legal standard, or, a fortiori, demonstrate, in a manner that complies with all of the requirements set out in paragraph 15 of the present order, how its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, which would justify the appeal being allowed to proceed.

18      It should be recalled that, in accordance with the burden of proof which lies with an appellant requesting that an appeal be allowed to proceed, the appellant must demonstrate that, independently of the issues of law invoked in its appeal, the appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law, the scope of that criterion going beyond the judgment under appeal and, ultimately, its appeal. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply arguments of a general nature (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraphs 27 and 28, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraphs 30 and 31).

19      The appellant’s mere claims that the question whether acts of secondary legislation must be considered in their entirety and interpreted in the light of all of their provisions is an issue that is significant with respect to the unity and consistency of EU law and is of a significance which goes beyond the present case are clearly too general to constitute such proof (see, by analogy, order of 27 October 2023, Wallmax v EUIPO, C‑495/23 P, EU:C:2023:824, paragraph 17).

20      As regards, in the second place, the arguments summarised in paragraphs 10 to 12 of the present order, relating to the infringement of Article 58(2) of Regulation 2017/1001 on account of the concept of ‘dietary supplements adapted for medical or dietetic use’ not being divided into subcategories, it must be stated that the appellant has not met all of the requirements set out in paragraph 15 of the present order.

21      The appellant does not identify any paragraph in the judgment under appeal which it intends to challenge, thereby depriving, in the present case, the ground of appeal relied on of its proper context and rendering it, consequently, insufficiently precise. Moreover, it does not indicate to what extent the error of law relied on had an influence on the outcome of that judgment (see, by analogy, order of 27 June 2023, Haskovo Chamber of Commerce and Industry v EUIPO and Devin, C‑77/23 P, EU:C:2023:519, paragraph 25).

22      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.

23      In the light of the foregoing considerations, the appeal should not be allowed to proceed.

 Costs

24      Under Article 137 of the Rules of Procedure, applicable to proceedings 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.

25      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.      OmniActive Health Technologies Ltd shall bear its own costs.

Luxembourg, 14 June 2024.

*      Language of the case: English.