ddrg/super_eurlex huggingface dataset:
4.

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28-30)
When examining opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade under Article 8(4) of Regulation No 207/2009 on the Community trade mark, the question of the extent to which a sign which is protected in a Member State confers the right to prohibit the use of a subsequent trade mark must be examined in the light of the applicable national law.

In such circumstances, the Office for Harmonisation in the Internal Market (Trade Marks and Designs) must, of its own motion and by whatever means considered appropriate, obtain information about that national law, where such information is necessary to assess the applicability of the ground for refusal of registration in question. Accordingly, OHIM must take into consideration, in addition to the facts which have been expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, facts which are likely to be known by anyone or which may be learnt from generally accessible sources. That obligation to obtain, of its own motion, information about national law applies to OHIM, in appropriate cases, where it already has before it information relating to national law, either in the form of claims as to its content, or in the form of evidence submitted and whose probative value has been claimed.

In that regard, OHIM must use all the means available to it in connection with its power to verify in order to obtain information about the applicable national law and to carry out further research into the wording and scope of the provisions of national law relied on, in the light of the arguments submitted by the applicant, either of its own motion or by inviting the applicant to corroborate its claims.

(see paras 24, 31, 35)
Judgment of the General Court (Fifth Chamber) of 12 November 2015 —

CEDC International v OHIM — Fabryka Wódek Polmos Łańcut (WISENT)

(Case T‑449/13)

‛Community trade mark — Invalidity proceedings — Community figurative mark WISENT — Earlier national three-dimensional mark ŹUBRÓWKA — Relative grounds for refusal — Similarity of the marks — Articles 53(1)(a) and 8(1)(b) and 8(5) of Regulation (EC) No 207/2009’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Lack of clarity and precision — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d)) (see paras 16-18)

2. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Subject-matter of the dispute before the General Court — Allegations of the parties changing the subject-matter of the dispute before the Board of Appeal — Inadmissibility (Council Regulation No 207/2009, Art. 65(2); Rules of Procedure of the General Court, Art. 188) (see para. 26)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 40, 41, 65)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds of invalidity — Existence of an identical or similar earlier trade mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 55-57, 80, 81, 93, 101)

5. Community trade mark — Surrender, revocation and invalidity — Relative grounds for refusal — Existence of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark WISENT and three-dimensional mark ŹUBRÓWKA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 113, 118, 127)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 10 June 2013 (Case R 33/2012-4), relating to invalidity proceedings between Przedsiębiorstwo Polmos Białystok and Fabryka Wodek Polmos Łańcut SA.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 June 2013 (Case R 33/2012-4);
Where an undertaking calls into question the merits of the decision appraising State aid taken on the basis of Article 108(3) TFEU or after the formal investigation procedure, the mere fact that it may be regarded as concerned within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible under the fourth paragraph of Article 263 TFEU. It must go on to demonstrate that it has a particular status. That applies in particular where its market position is substantially affected by the aid to which the decision at issue relates. In that regard, the undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show, in the light of its participation in the procedure and the magnitude of the harm to its position on the market, that its factual circumstances distinguish it in a similar way to the undertaking in receipt of the aid.

In determining whether it is affected in that way, the mere fact that such a decision may have some influence on the competitive relationships existing on the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as individually concerned by that measure. The undertaking concerned must provide evidence to establish the particularity of its competitive situation and demonstrate that its competitive position is substantially affected in comparison with the other undertakings competing in the market at issue. It cannot simply be presumed that the applicant would have significantly increased its sales in the event of the disappearance from the market of the undertaking benefiting from the measures at issue, without any evidence to support that claim, in a situation where the structure of the market is unconcentrated and characterised by the presence of a large number of operators. It must be demonstrated that the aid at issue helped the recipient to maintain market shares which would have otherwise been held by the undertaking concerned itself and, therefore, that it suffered a sufficiently considerable loss of earnings in comparison with its other competitors, so as to characterise it as a substantial effect on its market position. In that regard, its position as number two in the market, behind the recipient, cannot by itself give rise to a presumption of the existence of a substantial effect on its market position.

(see paras 44-47, 51, 52)
Observance of the rights of the defence is a general principle of EU law enshrined in the Charter of Fundamental Rights of the European Union which must be guaranteed in all proceedings, including merger proceedings before the Commission. Similarly, the principle of the right to a fair hearing, which forms part of the rights of the defence, requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claims.

In that regard, the econometric analysis used by the Commission in its decision declaring the merger in question incompatible with the internal market was based on an econometric model different from that which had been the subject of an exchange of views and arguments during the administrative procedure. Whilst there are numerous similarities between the final econometric model and those discussed during the administrative procedure, the changes made to the final model nevertheless cannot be regarded as negligible.

Accordingly, the Commission cannot claim that it was not required to communicate the final econometric analysis model to the applicant before adopting the contested decision.

Accordingly, the applicant’s rights of defence were infringed, with the result that the contested decision should be annulled, provided that it has been sufficiently demonstrated by the applicant not that, in the absence of that procedural irregularity, the contested decision would have been different in content, but that there was even a slight chance that it would have been better able to defend itself. The applicant might have been better able to defend itself if it had had at its disposal, before the adoption of that decision, the final version of the econometric model chosen by the Commission.

(see paras 198-200, 205, 209, 210, 215)
133

In addition, it is not established, nor is it claimed by the applicants or the Italian Republic moreover, that the absence of loss before the subscription of the reinsurance cover at issue on 5 June 2009 had been brought to the Commission’s attention in the administrative procedure in order to justify the adoption of the second measure. In accordance with case-law (judgment of 25 June 2008 in Olympiaki Aeroporia Ypiresies v Commission, cited in paragraph 83 above, EU:T:2008:222, paragraph 56; see also, to that effect, judgments of 1 July 2008 in Chronopost and The Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, ECR, EU:C:2008:375, paragraph 144, and Commission vScott, cited in paragraph 95 above, EU:C:2010:480, paragraph 91), the lawfulness of the contested decision is to be assessed in the light of the information available to the Commission when the decision was adopted. In so far as the applicants and the Italian Republic did not communicate that information to the Commission in the course of the administrative procedure, they cannot therefore, in contesting the lawfulness of the contested decision, rely on the fact that no loss had been recorded in the five months preceding the subscription of the reinsurance cover at issue for Sace BT, such that the risks assumed by SACE were smaller (see, to that effect, judgment of 13 June 2002 in Netherlands v Commission, C‑382/99, ECR, EU:C:2002:363, paragraph 76). Furthermore, and in any event, the Commission rightly pointed out at the hearing that the new argument based on the absence of losses in the first five months of 2009, relied on for the first time during the hearing, was inadmissible under Article 48(2) of the Statute of the Court of Justice of the European Union. That argument cannot be regarded as a development of the vague and unsubstantiated reliance by the applicants in the application on the ‘historic performance favourable to reinsurers’ of Sace BT’s portfolio (see paragraph 104 above).
153

The applicants claim that the methodology used in the contested decision for calculating the value of direct EEA sales through transformed products is incorrect and led to a fine which is disproportionate to the actual impact of those sales on the market. In that regard, firstly, they observe that, according to the Commission’s request for information of 4 March 2011, the value of those sales was to be calculated as the average of the value of direct EEA sales in the same period, multiplied by the number of CPTs concerned. Thus, the applicants claim that the Commission’s methodology started from the mistaken premiss that the average value of CPTs incorporated in transformed products was identical to the average value of direct sales of CPTs in the EEA. According to the applicants, that approach ignores the fact that, so far as concerns Panasonic, the sizes of CPTs incorporated in transformed products by the group were generally smaller and therefore of lower value than those sold directly to third parties in the EEA, as was established by the report of a firm of consultants in competition economics, annexed to the reply to the Commission’s request for information, formulated by the applicants on 20 April 2011. Secondly, the applicants submit that, unlike the approach advocated by the Commission, which was based only on the period during which the CPTs were sold to third parties, the methodology which they had proposed was more accurate, since it was based on a weighted average taking into account both the time period and the size of the CPTs incorporated into Panasonic televisions. The applicants complain that although the Commission did not deny the accuracy of the data provided by the applicants, it did not take that data into account in its calculation of the amount of the fine which was imposed on them by the contested decision.
32

The ECHA states, first, that the enterprises Medini and ALO Immobilien, were not regarded as the applicant’s partners. Moreover, the contested decision referred to the Compagnie d’Investissement des Alpes as the applicant’s ‘indirect partner enterprise’. Requests for information concerning that enterprise and those potentially linked to Medini are grounded in Article 6 of the Annex to Recommendation 2003/361. In particular, under the second subparagraph Article 6(3) of the Annex to Recommendation 2003/361, the ECHA sought to assess the data from the two partner enterprises of ICB (namely Medini and ALO Immobilien). To that end, the ECHA states that it applied the first subparagraph of Article 6(3), which provides guidance on how to establish the data of a partner enterprise of a linked enterprise. Consequently, the ECHA asked the applicant to provide the data of ALO Immobilien and Medini and those of the enterprises linked to them (namely the Compagnie d’Investissement des Alpes). That request is also consistent with the wording of the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361, which does not provide, in contrast to what is provided for autonomous enterprises, that the establishment of the data of partner enterprises of the enterprises linked to the enterprise concerned should be made ‘exclusively’ on the basis of the accounts of those enterprises. The ECHA notes that the word ‘exclusively’ is included in numerous language versions of Recommendation 2003/361. The ECHA therefore interprets the second subparagraph of Article 6(3) of the Annex to Recommendation 2003/361 as requiring it to take into account the data of all enterprises linked to the partner enterprises referred to in that article. A contrary interpretation would result in the SME status of an enterprise varying based on whether or not the partner enterprises of the enterprises linked to the enterprise concerned are included in the consolidated balance sheets of enterprises to which they are linked (in this case the Compagnie d’Investissement des Alpes). That interpretation is also consistent with the strict interpretation of criteria which should be adopted with regard to Recommendation 2003/361. It is likewise consistent with the SME definition guide and in particular the Explanatory Note and Annexes to that guide. The ECHA adds that the concept of a ‘group of enterprises’, as put forward by the applicant, is contrary to the provisions of Recommendation 2003/361. Whether or not an enterprise belongs to a group depends on the relations which it has with other enterprises and not on the existence of a holding company. The ECHA notes that, in the present case, one of the shareholders and directors of ICB is also chairman of the board of directors of the applicant and a director of ALO Immobilien. The data of the Compagnie d’Investissement des Alpes must be therefore be analysed before deciding on the SME status of the applicant.
Judgment of the General Court (Second Chamber) of 21 January 2015 — Grundig Multimedia v OHIM (GentleCare)

(Case T‑188/14)

‛Community trade mark — Application for Community word mark GentleCare — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Equal treatment’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods — Word mark GentleCare (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 22)

2. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (see paras 41-43)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 24 January 2014 (Case R 739/2013-5) confirming rejection of the application for registration of the word sign GentleCare as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Ninth Chamber) of 17 June 2015 — BMV Mineralöl v OHIM — Delek Europe (GO)

(Case T‑60/14)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark GO — Earlier Community figurative mark GO — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 21)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 33)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative marks GO (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 35)

Re:

ACTION brought against the decision of the fourth Board of Appeal of OHIM of 22 November 2013 (Case R 382/2013-4), relating to opposition proceedings between BMV Mineralöl Versorgungsgesellschaft mbH and Delek Europe BV.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Ninth Chamber) of 21 May 2015 —

La Zaragozana v OHIM — Charles Cooper (GREEN’S)

(Case T‑197/14)

‛Community trade mark — Opposition proceedings — Application for the Community figurative trade mark GREEN’S — Earlier national word mark AMBAR GREEN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 17, 18, 50, 51)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark GREEN’S and word mark AMBAR GREEN (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 24, 56)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27, 31, 32)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 21 January 2014 (Case R 1284/2012‑5), relating to opposition proceedings between La Zaragozana, SA and Charles Cooper Ltd.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods — Assessment of the descriptive nature of a sign — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 14)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 15)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods — Figurative mark ORGANIC PROTEIN RICH PLANT COMPLEX FROM OUR OWN PRODUCTION (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 16-18, 20, 24)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope (Council Regulation No 207/2009, Arts 7(1), and 75) (see para. 19)

5. Actions for annulment — Grounds — Misuse of powers — Concept (Art. 263 TFEU) (see para. 26)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 June 2014 (Case R 123/2014-4) concerning an application for registration of the figurative sign ORGANIC PROTEIN RICH PLANT COMPLEX FROM OUR OWN PRODUCTION as a Community trade mark.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Laverana GmbH & Co. KG to pay the costs.