ddrg/super_eurlex huggingface dataset:
22

EUIPO, supported by the intervener, disputes the applicant’s arguments. EUIPO takes the view that a strictly literal interpretation of Article 8(3) of Regulation No 207/2009 would mean that this provision could be applied only if the signs are identical and would render it ineffective. EUIPO submits that a trade-mark applicant could avoid application of the provision by slightly modifying the earlier trade mark and that in such a case the interests of the proprietor of the earlier trade mark would be seriously prejudiced. It contends that if the trade mark was registered despite the similarity between the two signs, the applicant for the contested trade mark would then be able to prevent all subsequent registration and usage of the earlier trade mark by the original proprietor. It submits that Article 8(3) of Regulation No 207/2009 is designed to prevent the misuse of a mark by the trade mark proprietor’s agent, since the agent may exploit the knowledge and experience acquired during their business relationship and therefore improperly benefit from the effort and investment made by the proprietor of the earlier trade mark. According to EUIPO, that provision should be interpreted in a nuanced manner in order to protect the legitimate proprietor effectively against unfair practices of its representatives by extending the application of this provision beyond cases involving strictly identical trade marks. The comparison of the signs carried out under Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001) and that carried out under Article 8(3) of that regulation are not necessarily the same. EUIPO maintains that with regard to the latter comparison, Article 8(3) of Regulation No 207/2009 focuses on the interests of the proprietor of the earlier mark. In the present case, the Board of Appeal did not apply the test of similarity attributable to Article 8(1)(b) of Regulation No 207/2009, but rather considered, in view of the specific nature of the signs, whether they could be deemed similar ‘in essence’ so that legitimate interests of the proprietor of the trade mark could be undermined and the applicant could improperly benefit from its prior relation with that proprietor. Therefore, it is the specific nature of the signs in the present case that warrants application of Article 8(3) of Regulation No 207/2009 beyond the identity of the signs.
42

Thirdly, the situation of the applicant’s members must also be distinguished from that of the members of the applicants in the case giving rise to the order of 26 April 2016, EGBA and RGA v Commission (T‑238/14, not published, EU:T:2016:259), cited by the Commission. Unlike the present case, which concerns an existing aid scheme, the decision under challenge in that case was a new aid scheme, concerning a proposal for a parafiscal levy on online horse-race betting designed to fund a public service mission entrusted to racing companies. The members of the applicants, who were all operators in the gambling and betting sector, could therefore only rely on their status as competitors of future beneficiaries of that scheme, since the scheme had not yet been implemented when the decision under challenge was adopted. Therefore, as the Court pointed out in that case, the decision in issue affected the interests of all parties active in the sector of online horse-race betting in France: those which were present on that market before the decision was adopted, those which entered the market after its adoption, and those which would enter that market in the future. The applicants’ members were thus part of an indeterminate group of economic operators which could grow in number following the adoption of the decision under challenge. They were not part of a closed class, that is to say, a group which could not be extended after the adoption of the contested measure. Accordingly, the applicants’ members were affected by the decision under challenge only in their objective capacity as parties subject to a parafiscal levy, in the same way as every other competitor in the sector at issue (see, to that effect, order of 26 April 2016, EGBA and RGA v Commission, T‑238/14, not published, EU:T:2016:259, paragraphs 66 and 67).
96

In addition, it should be noted that where the Commission finds, as in the contested decision, that aid is unlawful, EU law requires the national courts to order the beneficiary of the aid to pay interest in respect of the period during which the aid in question was unlawfully paid (see, to that effect, judgments of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraphs 51, 52 and 55, and of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 39). However, even in the absence of exceptional circumstances, EU law does not require them to recover also the unlawful aid, where that aid is compatible with the internal market. Where relevant, therefore, it is only under national law that the national courts may have the power to order recovery of the unlawful aid, without prejudice to the right of the Member State concerned to re-implement that aid, subsequently, or to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid (see, to that effect, judgment of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraph 55).
3

Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, provides: ‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro-rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. 2. Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level. Each year the calculation of the contributions for individual institutions shall be based on: (a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and (b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States. The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks. In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually the 12.5% of the target level. … 6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU, shall be applied. 7. The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2, and 3, and in particular in relation to: (a) the application of the methodology for the calculation of individual contributions; (b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the various grounds for refusal — Overlap of the scope of the grounds set out in Articles 7(1)(b) and 7(1)(c) of Regulation No 2017/1001

(European Parliament and Council Regulation No 2017/1001, Art. 7(1)(b) to (d))

(see para. 36)
EU trade mark — Definition and acquisition of the EU 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

(European Parliament and Council Regulation 2017/1001, Arts 8(1)(b) and 47(2) and (3))

(see paras 38, 41)
1.

EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Request presented expressly and on time by the applicant — Possibility of submitting the application for the first time before the Board of Appeal — Not included (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see para. 17)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 27)
2.

EU trade mark — Definition and acquisition of the EU 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 21, 65)
4.

EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Recognition of the distinctiveness of the sign not subject to a finding of a certain level of creativity or linguistic or artistic imagination (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 23)
Judgment of the General Court (Third Chamber) of 14 May 2019 — Eurolamp v EUIPO (EUROLAMP pioneers in new technology)

(Case T‑465/18)

(EU trade mark — Application for EU word mark EUROLAMP pioneers in new technology — Absolute ground for refusal — No distinctive character — Mark consisting of an advertising slogan — Article 7(1)(b) of Regulation (EU) 2017/1001)

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Not included (European Parliament and Council Regulation 2017/1001, Art. 72(6)) (see para. 12)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Assessment of distinctive character — Criteria (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 16-19)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Marks consisting of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 20)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Marks consisting of advertising slogans — Slogan conveying an objective message (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 21)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Need to take account of the overall perception of the combination by the relevant public (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 32)

6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Word mark EUROLAMP pioneers in new technology (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (3)) (see paras 42, 54, 55, 65, 66)

7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (3)) (see paras 48-52)

Re

Action brought against the decision of the First Board of Appeal of EUIPO of 23 May 2018 (Case R 1358/2017-1), concerning an application for registration of the word sign EUROLAMP pioneers in new technology as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Appeals procedure — Action before the EU judicature — Procedural role of the Office — Right of the Office, although designated as the defendant, to support the applicant’s claims

(Rules of Procedure of the General Court, Art. 172)

(see para. 24)
Judgment of the General Court (Second Chamber) of 28 June 2019 –

Alfamicro v Commission

(Case T‑64/18)

(Competitiveness and Innovation Framework Programme — Seventh framework programme for research, technological development and demonstration activities (2007-2013) — Enforcement decision — Recovery of a debt arising out of a grant agreement — Article 299 TFEU — Regulation (EU, Euratom) no 966/2012 — Article 135 of Regulation No 966/2012 — Extrapolation of the audit findings — Obligation to state reasons)

EU budget — EU financial assistance — Grant agreement — Nature of funding

(see para. 54)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of Commission Decision C(2017) 8839 final of 13 December 2017 concerning the recovery of a debt from the applicant.

Operative part

The Court:

1. Dismisses the action;
Privileges and immunities of the European Union — Members of the European Parliament — Immunity in respect of opinions expressed and votes cast in the performance of their duties — Definition of opinion expressed in the performance of duties — Application in judicial proceedings against a Member of Parliament

(Protocol on the Privileges and Immunities of the European Union, Art. 8)

(see paras 13-18)
Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration's duty to have regard for the interests of officials — Account taken of the interests of the staff member concerned — Limits

(Conditions of Employment of Other Servants of the European Union, Art. 8)

(see paras 57-60, 101)
EU trade mark — Definition and acquisition of the EU 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

(European Parliament and Council Regulation 2017/1001, Arts 8(1)(b) and 42(2) and (3))

(see paras 89-91)
EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Meaning — Criteria for assessment

(European Parliament and Council Regulation 2017/1001, Arts 18(1) and 47(2) and (3))

(see paras 19, 20, 46, 52, 53, 58, 76)
European Union public contracts — Conclusion of a contract following a call for tenders — Abnormally low offer — Obligation on the contracting authority to examine the abnormally low nature of the tender — Scope — Elements to be taken into consideration

(European Parliament and Council Regulation No 966/2012; Commission Regulation No 1268/2012, Art. 151(1) and (2))

(see paras 60, 62, 64, 114, 122, 123)
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Examination of the grounds for refusal having regard to each of the products or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope

(European Parliament and Council Regulation 2017/1001, Arts 7(1) and 94, first sentence)

(see paras 36, 37)
4.

Actions brought by officials — Plea of illegality — Need for a close link between the contested measure and the allegedly unlawful earlier measure — Dispute as to the lawfulness of a vacancy notice at the time of an action brought against a rejection of candidature restricted to the provisions which formed the basis for that rejection (Art. 277 TFEU; Staff Regulations of Officials, Art. 91) (see para. 34)
2.

EU trade mark — Definition and acquisition of the EU 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 19)
4.

EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Earlier registration of the mark in certain Member States or third countries — Decisions not binding EU bodies (see paras 40, 41)
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Requirement that the institution should examine the documents specifically and individually — Scope — Refusal to grant access — Obligation to state reasons — Scope

(European Parliament and Council Regulation No 1049/2001, recitals 4 and 11 and Arts 1, 4 and 8)

(see paras 19-24)
Officials — Recruitment — Equal treatment — Classification in step — Internal and external candidates who were successful in the same competition procedure and to whom different directives were applied — Account taken of previous professional experience — Criteria — No breach of the principle of equal treatment

(Charter of Fundamental Rights of the European Union, Arts 20, 51(1) and 52(2); Administrative Circular No 2/2011 of the European Central Bank)

(see paras 39, 57, 68, 70, 72, 75)
Agriculture — Financing by the EAGF — Principles — Compliance of the expenditure with the EU rules — Restrictive interpretation — Need to ensure equal treatment of economic operators

(European Parliament and Council Regulation No 1306/2013; European Parliament and Council Regulation No 1290/2005)

(see paras 82, 106)
5.

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation – Protection of well-known earlier mark extended to dissimilar goods or services – Conditions – Reputation of the mark in the Member State or the EU – Evidence of reputation – Relevance of the criteria concerning genuine use of the mark to establish the existence of a reputation – None (European Parliament and Council Regulation 2017/1001, Art. 8(5)) (see paras 69, 70, 77)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to other documents — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see paras 27, 28)
EU law – Principles – Rights of defence – Right to effective judicial protection – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Obligation to disclose individual and specific grounds for the decisions adopted – Obligation to enable the person concerned effectively to put forward his point of view on the grounds held against him – Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CFSP, as amended by Decision (CFSP) 2017/2282, Annex II)

(see paras 49, 50, 52)
Judgment of the General Court (Eighth Chamber, Extended Composition) of 16 December 2020 –

Tokai erftcarbon v Commission

(Case T‑636/18)

(Non-contractual liability – Environment – Classification, labelling and packaging of certain substances and mixtures – Classification of pitch, coal tar, high-temp as an Aquatic Acute 1 (H400) toxic substance and as an Aquatic Chronic 1 (H410) toxic substance – Sufficiently serious breach of a rule of law intended to confer rights on individuals)

1. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – One of the conditions not satisfied – Claim for compensation dismissed in its entirety (Art. 340, second para. TFEU) (see paras 54, 55)

2. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Rule of law intended to confer rights on individuals – Meaning – Classification method for aquatic environmental hazards – Precluded (Art. 340, second para. TFEU; European Parliament and Council Regulation No 1272/2008, as amended by Regulations No 286/2011 and No 944/2013, Annex I, point 4.1.3.5.5) (see paras 58, 66-69)

3. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of a rule of law which leads to the imposition or strengthening of obligations on individuals so as to affect their legal situation (Art. 340, second para. TFEU) (see paras 70, 71)

4. Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – Requirement that the institutions manifestly and seriously disregard the limits of their discretion – Breach by the Commission of a rule affording it some discretion when classifying chemical substances and mixtures – Highly complex scientific situation – No sufficiently serious breach (Art. 340, second para. TFEU; European Parliament and Council Regulation No 1272/2008, as amended by Regulations No 286/2011 and No 944/2013, Annex I, point 4.1.3.5.5) (see paras 80-116)

Re:

Action under Article 268 TFEU seeking compensation for the damage which the applicant claims to have suffered as a result of the adoption of Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5), in so far as that regulation classified pitch, coal tar, high-temp as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.

Operative part

The Court:

1. Dismisses the action;

2. Orders Tokai erftcarbon GmbH to bear its own costs and to pay those incurred by the European Commission;
Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Clear and precise statement of the pleas relied on – Action seeking compensation for loss caused by an EU institution – No indications as to the character and extent of the damage suffered or as to the causal link – Inadmissibility

(Rules of Procedure of the General Court, Art. 76(d))

(see para. 94)