ddrg/super_eurlex huggingface dataset:
23

However, the Board of Appeal held that the scope of that evidence was such that it could not serve as a basis for the opposition and, in particular, the existence of a risk of free-riding, in essence for the following three reasons. First, the Board of Appeal stated that that evidence did not show that the intervener had used the presentation displayed on its website ‘www.mastercola.com’ in the European Union. In support of that finding, it noted the fact that that website was mainly written in Arabic, although one page was in English, as well as the lack of any indication that the goods offered on the website could be ordered online and sent to the European Union. Secondly, the Board of Appeal held that the mere fact that an EU trade mark is filed — the presentation of which is different from the one displayed on the intervener’s website — did not indicate that the latter intended to promote its goods in the same way in the European Union as it did in Syria and the Middle East. In particular, the Board of Appeal stated that it was unaware who owned the rights in those countries and that the applicant had not claimed an infringement of its rights in that region. Thirdly, the Board of Appeal held that the applicant further failed to show which specific image could be transferred from the four earlier Coca-Cola trade marks to the application at issue in the European Union or outside the Union, in particular regarding the goods in Classes 29 and 30, but also regarding the beverages in Class 32. Therefore, according to the Board of Appeal, the evidence submitted did not clearly establish what Coca-Cola stood for. It noted that, in so far as it was bound by the arguments submitted by the parties under Article 76 of Regulation No 207/2009 (now Article 95 of Regulation 2017/1001), it was not for it to request submissions of its own motion. Moreover, the Board of Appeal applied a similar argument to the risks of dilution or of tarnishment. Finally, in the light of all of the evidence submitted, it concluded that the opposition was unfounded and dismissed the appeal.
54

It should be recalled, first of all, that, although an applicant is entitled to lodge a direct action, within the prescribed period, against a competition notice where it constitutes a decision by the appointing authority adversely affecting him within the meaning of Articles 90 and 91 of the Staff Regulations, he is not barred from bringing an action directed against the decision not to admit him to the competition solely on the grounds that he did not challenge the competition notice in due time (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 21, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 40). A candidate in a competition must not be deprived of the right to challenge all the elements, including those defined in the competition notice, comprising the justification for the individual decision concerning him taken on the basis of the conditions laid down in the notice, inasmuch as only the decision applying them affects his legal position individually and enables him to ascertain with certainty how and to what extent his personal interests are affected (see, to that effect, judgments of 16 September 1993, Noonan v Commission, T‑60/92, EU:T:1993:74, paragraph 23, and of 31 January 2006, Giulietti v Commission, T‑293/03, EU:T:2006:37, paragraph 41). As long as the applicants’ applications have not been rejected by the selection board, they cannot be sure whether they have an interest in bringing proceedings against the competition notice, so that they cannot be criticised for not having contested the competition notice within the time limits provided for in Articles 90 and 91 of the Staff Regulations. An applicant may therefore, in the event of an action brought against subsequent measures, plead the irregularity of previous measures which are closely connected with them (see, to that effect, judgment of 15 September 2017, Commission v FE, T‑734/15 P, EU:T:2017:612, paragraph 115).
10

The ECB, in the third place, considered that the sums transferred by the applicant to the CDC continued to be relevant exposures for the calculation of its leverage ratio. It relied on three grounds. The first ground, which it described as a ‘first indication’, is based on the accounting treatment of the savings collected. The ECB inferred from the fact that the regulated savings appeared on the liabilities side of the applicant’s balance sheet and the sums transferred to the CDC appear on the assets side of its balance sheet that the applicant remained liable for the exposure consisting in the savings collected, including the sums transferred to the CDC. The ECB added that the applicant was required to manage the operational risks associated with the regulated savings. The second ground consists in the applicant’s contractual obligation to reimburse customers’ deposits, irrespective of whether the funds transferred to the CDC are returned to the applicant. The third ground is based on the existence of a period between the adjustments of the applicant’s positions and the CDC’s positions for rebalancing purposes. The ECB considered that during that period the applicant might find it necessary to have recourse to a fire sale of assets while awaiting transfers of funds from the CDC. In conclusion, the ECB inferred from those grounds that the mechanism for the transfer of funds from the CDC to the applicant was imperfect, giving rise to prudential concerns that justified the rejection of its request.
44

The Court notes that Section 3.4.3 of the General Rules, entitled ‘Internal review procedure’, is worded as follows: ‘You can request a review of any decision of the selection board or EPSO that directly and immediately affects your legal status in the competition (that is to say, that establishes your results and/or determines if you can proceed to the next stage of the competition or are excluded therefrom). Requests for review may be based on one or more of the following reasons: – a material irregularity in the competition process, – non-compliance, by the selection board or EPSO, with the rules governing the competition procedure as laid down by the Staff Regulations, the notice of competition, these general rules, and case-law. Please note that you are not allowed to challenge the validity of the selection board’s assessment concerning the quality of your performance in a test. … Procedure Submit your request [for review] within 10 calendar days from the date when the decision you wish to contest is uploaded in your EPSO account: – either via the contact form on EPSO’s website, – or by post to [EPSO]. … You must clearly indicate the decision you wish to contest, and you must state the grounds on which your request is based. The internal review procedure is managed by the legal team of EPSO. Upon receipt of your request we will send you an acknowledgment of receipt within 15 working days. Your request will then be analysed and submitted for consideration to the same body that adopted the contested decision (either the selection board or EPSO). The selection board or EPSO will then take a decision based on your request. After a decision is taken, a reasoned reply addressing your arguments will be prepared by the legal team. We will examine your request thoroughly, fairly and objectively. The procedure may take several weeks. We will send you a reasoned decision as swiftly as possible, via your EPSO account. If your request for review receives a positive response, you will be reintegrated into the competition at the step where you have been excluded regardless of how far the competition has progressed in the meantime, so that your rights may be safeguarded.’
108

Second, in its letter of 30 July 2018, the applicant remarked upon a series of procedural irregularities relating to the first contested decision. First of all, it noted that the emails sent by the members of the executive session of the SRB in response, which should show that they agreed to a decision being adopted by written procedure, had not been submitted to the Court. The applicant then noted, after having pointed out an inaccuracy in the calculations, that the decision taken by written procedure had been amended on the evening of 15 April 2016 by interpreting the members’ silence as constituting their consent, with no time limit for expressing any objections having been provided in the SRB’s communications with the members of the executive session. The applicant observed that those messages were not sent to one member of the executive session in particular, with no explanation or evidence of that member having been notified by other means having been submitted to the Court. According to the applicant, that process of adopting the decision is contrary both to the principle of good administration identified in the case-law and set out in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and to the RPES, in particular Article 9(1) and (2) and Article 11 of the RPES. Finally, the applicant criticised the format of the draft decisions sent on 15 April and 19 May 2016, namely the electronic distribution of documents, which were mainly in the form of XLSX files. It stated that the calculation ought to not to be made in an XLSX document in which it is possible to change all of the values given or intermediate values at any point, either inadvertently or intentionally. Moreover, in the absence of a verifiable electronic signature which could guarantee that the amounts determined for the contributions had not been amended or falsified, it is impossible to know which DOCX, XLSX or PDF document is the ‘signed original’ of the amounts determined for each of the institutions.
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Genuine use—Meaning—Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Recital 10 and Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3))

(see paras 45-48)
Judgment of the General Court (Eighth Chamber) of 8 March 2018 — Claro Sol Cleaning v EUIPO — Solemo (Claro Sol Facility Services desde 1972)

(Case T‑159/17)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark Claro Sol Facility Services desde 1972 — Earlier national figurative mark SOL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(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 @ Direction addressed to the Office—Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 19)

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23-26, 62)

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 27, 32, 33, 36, 47, 48)

4. 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—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

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 registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Figurative marks Claro Sol Facility Services desde 1972 and SOL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 45, 49, 50, 54, 55, 58-61, 63-66)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 478/2016-1), relating to opposition proceedings between Solemo and Claro Sol Cleaning.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 January 2017 (Case R 478/2016-1).

2. Orders Solemo Oy to bear its own costs and to pay those incurred by Claro Sol Cleaning, SLU.
Judgment of the General Court (Fifth Chamber) of 18 May 2018 –

Italytrade v EUIPO — Tpresso (tèespresso)

(Case T‑67/17)

(EU trade mark — Opposition proceedings — Application for the EU word mark tèespresso — Earlier international figurative mark TPresso and earlier international word mark TPRESSO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19, 58)

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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 28, 29)

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—Likelihood of confusion with the earlier mark—Word mark tèespresso—Figurative marks TPresso and word mark TPRESSO (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30-34, 40-47, 56, 65, 69, 70)

4. 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—Similarity of the marks concerned—Breakdown of a word sign into word elements having concrete significance (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 53)

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 registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Weak distinctive character of the earlier mark—Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 67)

6. 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—Weighing elements of similarity or difference between the signs—Taking into account of the intrinsic characteristics of the signs or the conditions in which the goods or services are marketed (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 68)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 29 November 2016 (Case R 959/2016-4), relating to opposition proceedings between Tpresso and Italytrade.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Ninth Chamber) of 16 May 2018 –

Barnett v EESC

(Case T‑23/17)

(Civil service — Officials — Retirement pension — Early retirement without reduction of pension rights — Facility formerly provided for in Article 9(2) of Annex VIII to the Staff Regulations — Interests of the service — Compliance with an annulling judgment delivered by the Civil Service Tribunal — Liability)

1. Actions brought by officials—Judgment annulling a measure—Effects—Obligation to implement—Scope—Both the operative part and the grounds of the judgment to be taken into account—Decision not necessarily having to be on the same grounds as those appearing in the annulled measure (Art. 266 TFEU) (see paras 21, 22, 28, 29)

2. Officials—Pensions—Retirement pensions—Early pension without reduction—Conditions for granting—Interests of the service—Administration's discretion—Judicial review—Limits—Manifest error of assessment—Meaning—Burden of proof (Staff Regulations of Officials, Annex VIII, Art. 9(2)) (see paras 35-39)

3. Actions brought by officials—Judgment annulling a measure—Implementing measures—Repeal of the legal basis enabling a new act to be adopted to replace the act annulled—Possibility of adoption on the basis of Article 266 TFEU—None—Requirement for a legal basis in force at the date of adoption (Art. 266 TFEU; Staff Regulations of Officials, Annex VIII, Art. 9(2)) (see paras 55-58)

4. Officials—Non-contractual liability of the institutions—Conditions—Unlawfulness—Damage—Causal link—Cumulative conditions (Art. 340, second para., TFEU) (see para. 64)

5. Actions brought by officials—Judgment annulling a measure—Effects—Adoption of measures of compliance—Reasonable time—Criteria for assessment (Art. 266 TFEU) (see para. 66)

Re:

Application under Article 270 TFEU seeking, primarily, the annulment of the decision of the EESC of 21 March 2016, taken with a view to complying with the judgment of 22 September 2015, Barnett v EESC (F‑20/14, EU:F:2015:107), refusing to grant the applicant early retirement without reduction of pension rights and, secondarily, compensation for the damage which she claims to have suffered.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based—Similar requirements for submissions made in support of a plea

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

(see para. 46)
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Overlapping of the scope of the grounds set out in Article 7(1)(b) and (c) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 7(1)(b) and (c))

(see para. 53)
Judgment of the General Court (Third Chamber) of 12 September 2018 –

Primart v EUIPO — Bolton Cile España (PRIMART Marek Łukasiewicz)

(Case T‑584/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark PRIMART Marek Łukasiewicz — Earlier national work marks PRIMA — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27, 80)

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 PRIMART Marek Łukasiewicz and word marks PRIMA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 40, 53, 79, 92, 108-110)

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 41, 42)

4. EU trade mark—Appeals procedure—Action before the EU judicature—Legality of the decision of a Board of Appeal adjudicating in opposition proceedings—Challenge in reliance on new elements of law or fact—Not permissible (Council Regulation No 207/2009, Arts 65 and 76(1)) (see paras 88, 89)

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 registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Criteria for assessment—Early mark occupying a distinctive independent position in the trade mark sought (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 98)

6. 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 101-104)

7. EU trade mark—Decisions of the Office—Legality—EUIPO’s previous decision-making practice (see paras 106, 107)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 22 June 2017 (Case R 1933/2016-4), relating to opposition proceedings between Bolton Cile España and Przedsiębiorstwo Produkcyjno-Handlowe „Primart” Marek Łukasiewicz.

Operative part

The Court:

1. Dismisses the action;