ORDER OF THE COURT (Chamber determining whether appeals may proceed)
1 October 2026 ( * )
[para_3]( 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 )
[para_4]In Case C‑464/26 P,
[para_5]APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 May 2026,
[para_6]Dariusz Kowalski, residing in Mogilno (Poland), represented by P. Kurcman, radca prawny,
[para_7]appellant,
[para_8]the other parties to the proceedings being:
[para_9]European Union Intellectual Property Office (EUIPO),
[para_10]defendant at first instance,
[para_11]Hoyer SE, established in Visselhövede (Germany),
[para_12]intervener at first instance,
[para_13]THE COURT (Chamber determining whether appeals may proceed),
[para_14]composed of T. von Danwitz, Vice-President of the Court, M. Condinanzi and N. Jääskinen (Rapporteur), Judges,
[para_15]Registrar: A. Calot Escobar,
[para_16]having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, A. Rantos,
[para_17]makes the following
Order
[para_19]1 By his appeal, Mr Dariusz Kowalski asks the Court of Justice to set aside the judgment of the General Court of the European Union of 11 March 2026, Kowalski v EUIPO – Hoyer (FLAMBIT) (T‑301/25, ‘the judgment under appeal’, EU:T:2026:187), whereby the General Court dismissed his action seeking annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 March 2025 (Case R 633/2024-1), concerning opposition proceedings between Hoyer SE and the appellant.
The request that the appeal be allowed to proceed
[para_21]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.
[para_22]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.
[para_23]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 to rule on that request.
[para_24]5 In accordance with Article 170b(1) and (3) of the Rules of Procedure, the Court is to rule as soon as possible on the request that the appeal be allowed to proceed, in the form of a reasoned order.
Arguments of the appellant
[para_26]6 In support of his request that the appeal be allowed to proceed, the appellant submits that the single ground of his appeal, alleging infringement of Article 8(1)(b) 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), raises issues that are significant with respect to the unity, consistency and development of EU law.
[para_27]7 The appellant claims, in essence, that the General Court was incorrect in finding that the figurative sign ‘FLAMBIT’, which he seeks to register, is similar to the earlier marks ‘FLAMBRIKS’, even though the element ‘FLAM’, which is common to them, is descriptive, or, at the very least, has a weak distinctive character as regards the goods in question, namely firelighters, and that there are significant visual, phonetic and conceptual differences between the other word and figurative elements of the signs at issue.
[para_28]8 According to the appellant, by basing its assessment mainly on that common element, the General Court failed to have regard to its own case-law and that of the Court of Justice concerning the importance of weakly distinctive common elements, the scope of protection of marks containing descriptive elements and the principle of the global assessment of the likelihood of confusion.
[para_29]9 In order to establish the significance of the issues raised by that plea in law within the meaning of Article 58a of the Statute of the Court of Justice of the European Union, the appellant submits that the present case raises an issue that goes beyond the parties’ own interests since it concerns the criteria for assessing the similarity of marks containing weakly distinctive common elements. In his view, the present case therefore presents an opportunity to the Court to ensure uniform application of Article 8(1)(b) of Regulation 2017/1001 throughout the European Union, since the General Court departed from the supposedly established case-law resulting from the judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) (T‑6/01, EU:T:2002:261), and of 12 June 2007, OHIM v Shaker (C‑334/05 P, EU:C:2007:333), relating to the examination of descriptive or weakly distinctive elements in the assessment of the similarity of the signs at issue. The Court of Justice’s intervention could guide EUIPO’s practice and the General Court’s decisions regarding the assessment of marks containing common suggestive or descriptive elements, the scope of protection of marks whose distinctive character is weak and the methodology for the global assessment of the similarity of marks. Without such an intervention, a risk of uncertainty would persist in the application of Article 8(1)(b) of Regulation 2017/1001, which may encourage an extension of the protection of marks beyond their actual distinctive character and restrict, in an unjustified manner, the freedom to register signs containing commonly used linguistic elements.
Findings of the Court
[para_31]10 As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by his 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 18 November 2025, EUIPO v Versiontech , C‑411/25 P, EU:C:2025:943, paragraph 20).
[para_32]11 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 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 (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann , C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 18 November 2025, EUIPO v Versiontech , C‑411/25 P, EU:C:2025:943, paragraph 21).
[para_33]12 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, secondly, 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 18 November 2025, EUIPO v Versiontech , C‑411/25 P, EU:C:2025:943, paragraph 22).
[para_34]13 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 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 24 March 2026, Costa Pujadas v EUIPO , C‑723/25 P, EU:C:2026:289, paragraph 14).
[para_35]14 In the present case, as regards the arguments presented in paragraphs 6 to 9 above, it must be found, first, that, while it is true that the appellant does put forward an error of law allegedly made by the General Court, he does not, however, contrary to the requirements set out in paragraph 12 above, identify the paragraphs of the judgment under appeal which he intends to criticise or the grounds of that judgment which are, in his view, vitiated by that error. Secondly, the appellant’s line of argument alleging that the General Court failed to have regard to the case-law of the Court of Justice and its own case-law 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 appellant must also comply with the requirements set out in paragraph 12 of the present order (see, to that effect, order of 24 March 2026, Costa Pujadas v EUIPO , C‑723/25 P, EU:C:2026:289, paragraph 15 and the case-law cited). However, in that regard, the appellant in no way identifies the paragraphs of the judgments referred to in paragraph 9 above that have, in his view, been infringed by the General Court and offers no indication of the similarity between the situation in the present case which gave rise to the judgment under appeal and the situations referred to in that case-law that would make it possible to establish the existence of the alleged contradiction. Furthermore, he also does not set out the specific reasons for which such a contradiction allegedly raises an issue that is significant with respect to the unity, consistency or development of EU law that would justify the appeal being allowed to proceed.
[para_36]15 It follows that the appellant has not complied with all the requirements set out in paragraph 12 of the present order.
[para_37]16 In those circumstances, the appellant’s request that the appeal be allowed to proceed 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.
[para_38]17 In the light of all the foregoing considerations, the request that the appeal be allowed to proceed must be dismissed.
Costs
[para_40]18 Under Article 137 of the Rules of Procedure, applicable to the procedure 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.
[para_41]19 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 his own costs.
[para_42]On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
[para_43]1. The appeal is not allowed to proceed.
[para_44]2. Mr Dariusz Kowalski shall bear his own costs.
[para_45]Luxembourg, 1 October 2026.
A. Calot Escobar
T. von Danwitz
Registrar
President of the Chamber determining whether appeals may proceed
[para_50]* Language of the case: English.