ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Seventh Chamber) of 30 September 2016 —

Alpex Pharma v EUIPO — Astex Pharmaceuticals (ASTEX)

(Case T‑355/15)

‛EU trade mark — Opposition proceedings — Application for EU word mark ASTEX — Earlier EU word mark ALPEX — No genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76(1) of Regulation No 207/2009’

1. EU trade mark — Appeals procedure — Action before the EU judicature — Modification of the terms of the dispute as brought before the Board of Appeal — Not permissible (Council Regulation No 207/2009, Art. 65; Rules of Procedure of the General Court, Art. 188) (see para. 15)

2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Definition — Interpretation taking account of the ratio legis of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3)) (see para. 23)

3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Definition — Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3)) (see paras 25-28)

4. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Criteria for assessment — Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 29, 30)

5. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Subject-matter and material scope of Article 15(1)(a) of Regulation No 207/2009 (Council Regulation No 207/2009, Arts 15(1), second para., (a), and 42(2) and (3)) (see para. 31)

6. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 45)

7. EU trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Duty of diligence (Council Regulation No 207/2009, Art. 76(1)) (see para. 51)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 28 April 2015 (Case R 593/2014-2), relating to opposition proceedings between Alpex Pharma and Astex Pharmaceuticals.

Operative part

The Court:

1. Dismisses the action;
Article 13(2) of Regulation No 1/2003, like all the provisions of that regulation, refers to the situations in which Articles 101 and 102 TFEU are implemented. Consequently, the Commission may reject a complaint on the basis of Article 13(2) of Regulation No 1/2003 only where it has been the subject of a review carried out in the light of EU competition law rules.

In those circumstances, in a case where a national competition authority has ruled in one of its decisions solely on the basis of national competition law, the provisions of Article 13(2) of Regulation No 1/2003 cannot be used and are therefore inapplicable.

(see paras 26-29)
Judgment of the General Court (First Chamber) of 22 September 2016 — Grupo de originación y análisis v EUIPO — Bankinter (BK PARTNERS)

(Case T‑228/15)

‛EU trade mark — Opposition proceedings — Application for EU figurative mark BK PARTNERS — Earlier national word and figurative mark bk. — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. 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 — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 16, 17, 43)

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 — Figurative mark BK PARTNERS — Word and figurative mark bk. (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 30, 54, 55)

3. 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 of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 42, 44)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 5 March 2015 (Case R 1329/2014-1), relating to opposition proceedings between Bankinter and Grupo de originación y análisis.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 5 April 2017 —

Tractel Greifzug v EUIPO — Shenxi Machinery (Shape of a motor-driven rope winch)

(Case T‑621/15)

(EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a motor-driven rope winch — Absolute ground for refusal — Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 207/2009)

1. EU trade mark—Definition and acquisition of the EU trade mark—Signs of which a trade mark may consist—Condition—Distinctive character (Council Regulation No 207/2009, Art. 4) (see para. 20)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result—Identification of the essential characteristics of a three-dimensional sign (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paras 21-23)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result—Concept—Existence of other shapes allowing the same technical result to be obtained—Not relevant to the ground for refusal (Council Regulation No 207/2009, Arts 7(1)(e)(ii), and 9(1)) (see paras 27, 29)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result—Shape of a motor-driven rope winch (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paras 31, 32)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 3 September 2015 (Case R 1658/2014-1), relating to invalidity proceedings between Shenxi Machinery and Tractel Greifzug.

Operative part

The Court:

1. Dismisses the action;

2. Orders Tractel Greifzug GmbH to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);
Non-contractual liability—Conditions—Unlawfulness—Sufficiently serious breach of EU law—Requirement that the institutions manifestly and seriously disregard the limits of their discretion—Assessment in the case of measures of general scope adopted by the European Central Bank in the exercise of its competences in monetary policy

(Arts 127 TFEU, 282 TFEU and 340 TFEU; Protocol No 4 annexed to the EU and FEU Treaties, Art. 18)

(see paras 69-71)
Commission conformity clearance decisions are taken on the basis of a summary report and correspondence between the Commission and the Member State concerned. In the particular context of the preparation of decisions relating to the clearance of accounts, the statement of reasons for a decision must be regarded as sufficient if the Member State to which the decision was addressed was closely involved in the process by which the decision came about and was aware of the reasons why the Commission took the view that it must not charge the sum in dispute to the funds in question. It follows therefrom that the Commission’s obligation to state reasons for its rejection of the assessment of the financial impact of the deficiencies found proposed by the Member State concerned must be assessed in the light of the developments and evolution of the parties’ arguments, in the context of the procedure in which both parties were heard which preceded the Commission’s final decision and sought to reach an agreement, on the basis of the information provided by the Member State concerned, on the rate of the financial correction or, failing agreement, to reconcile the respective positions of those parties, in accordance with the provisions of Article 52(3) of Regulation No 1306/2013, on the financing, management and monitoring of the common agricultural policy.

Moreover, the Commission is required to state reasons for its rejection of sufficiently precise details of the assessment put forward by the competent national authorities only during the administrative procedure. Although it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed, once it has established such an infringement it is for the Member State to demonstrate, if appropriate, that the Commission made an error as to the financial consequences to be attached to that infringement. The Member State must then adduce the most detailed and comprehensive evidence possible that its figures are accurate and, if appropriate, that the Commission’s calculations are incorrect. That division of the burden of proof as regards the financial consequences of the deficiencies found is explained by the fact that the management of the EAGGF and EAFRD financing rests mainly with the national administrations responsible for ensuring strict compliance with the EU rules and is based on trust between the national authorities and the EU authorities. Only the Member State is in a position to know and to determine precisely the information necessary for drawing up EAGGF and EAFRD accounts, since the Commission is not close enough to obtain the information it needs from the economic operators.

(see paras 45-48)
EU trade mark—Appeals procedure—Appeal against a decision of the Opposition Division of EUIPO—Examination by the Board of Appeal—Scope—Facts and evidence not produced in support of the opposition within the period prescribed for that purpose—Account taken—Discretion of the Board of Appeal

(Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation No 207/2009, Arts 63(1), 64(1), and 76; Commission Regulation No 2868/95, Art. 1, Rules 20(1), and 50(1), third subpara.)

(see paras 21-24, 35, 36, 38)
Judgment of the General Court (Third Chamber) of 4 May 2017 —

Schräder v OCVV — Hansson (SEIMORA)

(Joined Cases T‑425/15, T‑426/15 and T‑428/15)

(Plant variety rights — Application for revocation of the Community protection of the plant variety rights granted to the variety SEIMORA — Application for a declaration of invalidity of the Community protection of the plant variety rights granted to the variety SEIMORA — Application for Community protection of plant variety rights for the variety SUMOST 02 — Composition of the Board of Appeal of CPVO — Principle of impartiality)

1. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Stay of proceedings — Conditions — Judicial review of a suspension decision — Limits (Council Regulation No 2100/94, Art. 106) (see paras 59, 60)

2. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Obligation of board members suspected of partiality to refrain from sitting — Concept of partiality — Board expressing disagreement with the views of a party concerning the conduct of the procedure — Not included (Council Regulation No 2100/94, Art. 48(3) and (4)) (see para. 67)

3. Agriculture — Uniform legislation — Protection of plant varieties — Appeals procedure — Appeal brought against a decision of the Community Plant Variety Office and referred to the Board of Appeal — Measures of inquiry — Possibility of ordering additional investigative measures — Conditions (Council Regulation No 2100/94, Arts 53 to 65) (see paras 85-87)

4. Actions for annulment — Grounds — Infringement of essential procedural requirements — Annulment capable of giving rise only to a new decision identical on the substance — Invalid plea in law (Art. 263 TFEU) (see para. 109)

5. Agriculture — Uniform legislation — Protection of plant varieties — Transfer of rights to a protected variety — Conditions — Non-compliance — Consequences — Restrictive interpretation (Council Regulation No 2100/94, Arts 23 and 26) (see paras 137, 138)

Re:

In Case T‑425/15, action brought against the decision of the Board of Appeal of CVPO of 24 February 2015 (Case A 003/2010) concerning an application for revocation of the Community protection of the plant variety rights granted to the variety SEIMORA; in Case T‑426/15, action brought against the decision of the Board of Appeal of CVPO of 24 February 2015 (Case A 002/2014) concerning an application for a declaration of invalidity of the Community protection of the plant variety rights granted to the variety SEIMORA; and, in Case T‑428/15, action brought against the decision of the Board of Appeal of CVPO of 24 February 2015 (Case A 007/2009) concerning an application for Community protection of plant variety rights for the variety SUMOST 02.

Operative part

The Court:

1. Dismisses the actions;
EU trade mark — Appeals procedure — Action before the EU judicature — Modification of the terms of the dispute as brought before the Board of Appeal — Not permissible

(Rules of Procedure of the General Court, Art. 188; Council Regulation No 207/2009, Art. 65)

(see para. 28)
Judgment of the General Court (Sixth Chamber) of 6 April 2017 —

Metabolic Balance Holding v EUIPO (Metabolic Balance)

(Case T‑594/15)

(EU trade mark — Application for the EU figurative mark Metabolic Balance — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009)

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 18)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 19, 21, 43)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Assessment of the descriptive nature of a sign—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 20, 33, 35, 39, 42)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Figurative mark Metabolic Balance (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24, 37, 40, 52)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Concept—Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 27)

6. EU trade mark—Procedural provisions—Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75, first sentence) (see para. 29)

7. EU trade mark—Definition and acquisition of the EU trade mark—Assessment of the registrability of a sign—EU rules only taken into account—Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 44, 48, 49)

8. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice—Principle of legality—Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 45, 51)

9. EU trade mark—Definition and acquisition of the EU trade mark—Refusal of registration based on one of the absolute grounds for refusal set out in Article 7(1) of Regulation No 207/2009—Whether sufficient (Council Regulation No 207/2009, Art. 7(1)) (see para. 55)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 12 August 2015 (Case R 2156/2014-1), concerning an application for registration of the figurative sign Metabolic Balance as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Ninth Chamber) of 13 December 2016 — Puro Italian Style v EUIPO (smartline)

(Case T‑744/15)

(EU trade mark — Application for EU figurative mark smartline — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20, 21)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 22, 23)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula — Figurative mark smartline (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24-26, 28-33, 37)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 7 October 2015 (Case R 2258/2014-1), concerning an application for registration of the figurative sign smartline as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Surrender, revocation and invalidity — Causes of revocation — Absence of genuine use of a trade mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Subject-matter and scope of Article 15(1), second paragraph, (a), of Regulation No 207/2009 — Examination of alteration of distinctive character

(Council Regulation No 207/2009, Arts 15(1), second para., (a), and 51(1)(a))

(see paras 23-25, 29)
Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Clear and precise statement of the pleas relied on—Implified pleas seeking annulment of an act of an institution—Admissibility

(Rules of Procedure of the General Court (1991), Art. 44(1)(c); Rules of Procedure of the General Court (2015), Art. 76)

(see para. 33)
Judgment of the General Court (Eighth Chamber) of 26 October 2017 — KPN v Commission

(Case T‑394/15)

(Competition — Concentrations — Netherlands market for television services and telecommunications services — Decision declaring the concentration compatible with the internal market and the EEA Agreement — Commitments — Duty to state reasons — Relevant market — Vertical effects — Judicial review)

1. Acts of the institutions—Statement of reasons—Obligation—Scope—Decision to apply rules on concentrations between undertakings—Decision authorising a concentration operation (Art. 296 TFEU; Council Regulation No 139/2004) (see paras 49-51)

2. Acts of the institutions—Statement of reasons—Obligation—Scope—Plea based on absence or inadequacy of the statement of reasons—Plea alleging incorrectness of the statement of reasons—Distinction (Art. 296 TFEU) (see para. 52)

3. Concentrations between undertakings—Examination by the Commission—Definition of the market in question—Possibility for the Commission to leave that definition open—Conditions (Council Regulation No 139/2004) (see para. 60)

4. Concentrations between undertakings—Assessment of the compatibility with the internal market—Anti-competitive effects arising from a direct vertical relationship—Lack of analysis—Commission’s obligation to state reasons—Scope (Council Regulation No 139/2004) (see paras 57-73)

Re:

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision C(2014) 7241 final of 10 October 2014 declaring the concentration involving the acquisition by Liberty Global plc of sole control over Ziggo NV to be compatible with the internal market and the EEA Agreement (Case COMP/M.7000 — Liberty Global/Ziggo) (OJ 2015 C 145, p. 7).

Operative part

The Court:

1. Annuls Commission Decision C(2014) 7241 final declaring the concentration involving the acquisition by Liberty Global plc of sole control over Ziggo NV to be compatible with the internal market and the EEA Agreement (Case COMP/M.7000 — Liberty Global/Ziggo);