Order of 19 Jan 2026, C-598/25 (Hesse v Ferrari and EUIPO)

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

19 January 2026 (*)

( 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-598/25 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 September 2025,

Kurt Hesse, residing in Nuremberg (Germany), represented by M. Krogmann, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Ferrari SpA, established in Modena (Italy),

applicant at first instance,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of T. von Danwitz, Vice-President of the Court, N. Jääskinen and R. Frendo (Judge-Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, D. Spielmann,

makes the following

Order

1        By his appeal, Mr Kurt Hesse asks the Court of Justice to set aside the judgment of the General Court of the European Union of 2 July 2025, Ferrari v EUIPO – Hesse (TESTAROSSA) (T-1104/23, ‘the contested judgment’, EU:T:2025:660), by which the General Court annulled the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 August 2023 (Case R 887/2016-5), concerning revocation proceedings between Ferrari SpA and Mr Hesse, to the extent that the contested mark was revoked in respect of ‘scale toy land motor vehicles’ (‘scale model vehicles’) in Class 28 of the Nice Agreement Concerning the International Classification of Goods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.

 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 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

6        In support of his request that the appeal be allowed to proceed, the appellant submits that the two grounds of his appeal raise issues that are significant with respect to the unity, consistency or development of EU law, which have not yet been addressed by the Court.

7        By his first ground of appeal, the appellant submits that the General Court, in paragraphs 43, 44, 47, 52 and 68 of the contested judgment, failed to meet the particularly high requirements for unequivocal proof of use of the contested trade mark for scale model vehicles, a use that must be in accordance with the primary function of the trade mark, which is to guarantee to consumers the commercial origin of the goods for which it was registered.

8        The appellant submits in that regard that the mere visibility of the contested trade mark on the scale model vehicles, its size and the indications of the existence of a licensing contract between the sellers of those models and the proprietor of the trade mark, in the light of the specific characteristics of the market in question, do not constitute sufficient proof in order to establish that the trade mark was used in accordance with its primary function.

9        By his second ground of appeal, the appellant submits that the General Court, in paragraphs 65 and 68 to 71 of the contested judgment, wrongly assumed that the proprietor of the contested trade mark had given its implied consent to the use of that trade mark, within the meaning of Article 18(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), for the sale of scale model vehicles by third parties.

10      The appellant submits, in particular, that there is no indication that Ferrari had authorised the manufacturers of scale model vehicles to use the contested trade mark. Mere knowledge and tolerance of that use, or even simply a contractual connection with licensees for scale model vehicles, is not sufficient to give rise to a presumption of such consent.

 Findings of the Court

11      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 28 October 2025, eBilet Polska v EUIPO, C-305/25 P, EU:C:2025:855, paragraph 10).

12      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 28 October 2025, eBilet Polska v EUIPO, C-305/25 P, EU:C:2025:855, paragraph 11).

13      Accordingly, a request that an appeal be allowed to proceed must 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 contested judgment or order, 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 contested judgment or order. 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 contested judgment or order 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 28 October 2025, eBilet Polska v EUIPO, C-305/25 P, EU:C:2025:855, paragraph 12).

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 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 28 October 2025, eBilet Polska v EUIPO, C-305/25 P, EU:C:2025:855, paragraph 13 and the case-law cited).

15      In the present case, it is apparent from the arguments summarised in paragraphs 7 to 10 of the present order that the appellant, whilst purporting to argue an alleged disregard of, first, evidence of use of the contested trade mark by third parties for scale model vehicles as an indicator of the commercial origin of those goods and, second, the criteria for the application of Article 18(2) of Regulation 2017/1001, seeks, in reality, to elicit from the Court a new appraisal of the General Court’s assessment of the facts and evidence. In any event, such a line of argument, in itself, cannot be regarded as raising an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order of 25 June 2025, Vintae Luxury Wine Specialists v EUIPO, C-6/25 P, EU:C:2025:494, paragraph 16 and the case-law cited).

16      Furthermore, as regards the line of argument referred to in paragraph 6 of the present order, to the effect that the issues raised have not yet been addressed by the Court, it should be borne in mind that the fact that an issue of law has not yet been examined by the Court is not, in itself, sufficient to consider it significant with respect to the unity, consistency or development of EU law. The party requesting that an appeal be allowed to proceed remains bound to demonstrate such significance by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is particularly significant in that regard (see, to that effect, order of 29 April 2025, Jopp-Pol Eksport-Import Ryszard Jopp-Krzysztof Jopp v EUIPO, C-871/24 P, EU:C:2025:316, paragraph 17). However, the appellant does not set out the specific reasons why that lack of examination raises an issue which is significant with respect to the unity, consistency or development of EU law.

17      The appellant has accordingly failed to satisfy all the requirements referred to in paragraphs 11 to 14 of the present order.

18      In those circumstances, the request 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.

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

 Costs

20      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.

21      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.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1.      The appeal is not allowed to proceed.

2.      Mr Kurt Hesse shall bear his own costs.

Luxembourg, 19 January 2026.

A. Calot Escobar

 

T. von Danwitz

Registrar

 

President of the Chamber determining whether appeals may proceed

*      Language of the case: English.