ddrg/super_eurlex huggingface dataset:
6

Article 8 of Directive 93/42, headed ‘Safeguard clause’, provides: ‘1. Where a Member State ascertains that the devices referred to in Article 4(1) and (2) second indent, when correctly installed, maintained and used for their intended purpose, may compromise the health and/or safety of patients, users or, where applicable, other persons, it shall take all appropriate interim measures to withdraw such devices from the market or prohibit or restrict their being placed on the market or put into service. The Member State shall immediately inform the Commission of any such measures, indicating the reasons for its decision and, in particular, whether non-compliance with this Directive is due to: (a) failure to meet the essential requirements referred to in Article 3; (b) incorrect application of the standards referred to in Article 5, in so far as it is claimed that the standards have been applied; (c) shortcomings in the standards themselves. 2. The Commission shall enter into consultation with the parties concerned as soon as possible. Where, after such consultation, the Commission finds that: — the measures are justified, it shall immediately so inform the Member State which took the initiative and the other Member States; where the decision referred to in paragraph 1 is attributed to shortcomings in the standards, the Commission shall, after consulting the parties concerned, bring the matter before the Committee referred to in Article 6 within two months if the Member State which has taken the decision intends to maintain it and shall initiate the procedures referred to in Article 6, — the measures are unjustified, it shall immediately so inform the Member State which took the initiative and the manufacturer or his authorised representative established within the Community. 3. Where a non-complying device bears the CE marking, the competent Member State shall take appropriate action against whomsoever has affixed the mark and shall inform the Commission and the other Member States thereof. 4. The Commission shall ensure that the Member States are kept informed of the progress and outcome of this procedure.’
97

However, it has been held that, with respect to an applicant’s argument that its total turnover in a particular year was ‘artificially high’ owing to an allegedly significant increase in raw material prices, it was sufficient to note that even if that were established, it would not prevent such turnover from being taken into account for the purposes of the calculation of the upper limit of the fine. It may be inferred from the case-law that the turnover of an undertaking can be taken into account for that purpose, even if it differs significantly from turnover achieved in previous years, if it corresponds to a full business year during which economic activities were actually pursued. It should be clarified in that regard that the reference in the case-law to a ‘full year of normal economic activity’ is intended to ensure that a year in which the undertaking concerned was in the process of winding down its business, although economic activity had not yet entirely come to an end, is precluded from being taken into account, as, more generally, is a year in which the market conduct of the undertaking concerned did not correspond to that of an undertaking carrying on an economic activity on the usual terms. On the other hand, the mere fact that the turnover or the profits generated in a particular year are significantly lower, or higher, than in previous years does not mean that the year in question does not constitute a full year of normal economic activity (judgment of 12 December 2012 in Almamet v Commission, T‑410/09, EU:T:2012:676, paragraph 253).
94

In the present case, it is apparent from the minutes of the three bilateral meetings held as part of the settlement procedure that the applicants argued, at the second meeting, that partial immunity should be granted to them for the period from 1978 to 1992 pursuant to point 23 of the leniency notice. In support of that application, they relied on the fact that, in the absence of any admissions on their part, the Commission could take into account only isolated notes regarding four meetings in 1983 and inadequate statements by Kemira and Tessenderlo Chemie. At that same meeting, the Commission conceded that their admissions had been of decisive importance in demonstrating their participation in the cartel during that period. At the third meeting held in the course of the settlement procedure, the Commission indicated that it could not grant the partial immunity requested by the applicants as their cooperation had made it possible only to determine their own participation, not to extend the duration and scope of the cartel itself. By contrast, the Commission was ready to grant a reduction for mitigating circumstances by way of reward for their cooperation outside the leniency notice. However, given that the applicants had decided not to submit a proposal for a settlement and, subsequently, in their reply to the statement of objections, disputed their participation in the single infringement before 1993, the Commission did not ultimately use, for the reasons referred to in paragraph 78 above, the first period as a period in which they participated in the infringement.
In order to uphold the claim of seniority of the earlier national mark for the purposes of the application for registration of the Community mark pursuant to Article 34(1) of Regulation No 207/2009 on the Community trade mark, three cumulative conditions must be fulfilled: the earlier national mark and the Community mark applied for must be identical; the goods or services covered by the Community mark applied for must be identical to, or contained within, those covered by the earlier national mark; and the proprietor of the marks at issue must be the same.

The condition that the sign and mark must be identical must be interpreted restrictively because of the consequences attaching to such identity. In the present case, under Article 34(2) of Regulation No 207/2009, the proprietor of the Community mark for which the seniority of the earlier national mark has been recognised will, if he surrenders the earlier mark or allows it to lapse, be able to continue to have the same rights as he would have had if the earlier trade mark had continued to be registered.

(see paras 14, 17)
Keywords



Keywords

Community trade mark

—

Surrender, revocation and invalidity

—

Causes of revocation

—

No genuine use of a trade mark

—

Use of the mark in a form differing in elements not altering the distinctive character (Council Regulation No 207/2009, Arts 15(1)(a) and 51(1)(a)) (see para. 77

)
Judgment of the General Court (Sixth Chamber) of 29 March 2012 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

‛Community trade mark — International registration — Request for territorial extension of protection — Figurative mark 3D eXam — Absolute grounds for refusal — Descriptive character and lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24-26, 28-31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 1 March 2011 (Case R 2361/2010-2) relating to a territorial extension to the European Union of the protection of the international registration of the figurative mark 3D eXam.

Operative part

The Court:

1. Dismisses the action;

2. Orders Kaltenbach & Voigt GmbH to pay the costs.

Judgment of the General Court (Sixth Chamber) of 29 March 2012 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

‛Community trade mark — International registration — Request for territorial extension of protection — Figurative mark 3D eXam — Absolute grounds for refusal — Descriptive character and lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24-26, 28-31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 1 March 2011 (Case R 2361/2010-2) relating to a territorial extension to the European Union of the protection of the international registration of the figurative mark 3D eXam.

Operative part

The Court:

1. Dismisses the action;
Case T-514/11

(Publication by extracts)

i-content Ltd Zweigniederlassung Deutschland

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

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

Summary — Judgment of the General Court (Third Chamber), 4 June 2013

Community trade mark — Appeals procedure — Action before the EU judicature — Possibility for the General Court to alter the contested decision — Limits

(Council Regulation No 207/2009, Arts 64(1), second sentence, and 65(3))

The power of the Court to alter decisions pursuant to Article 65(3) of Regulation No 207/2009 on the Community trade mark does not have the effect of conferring on the Court the power to carry out an assessment on which the Board of Appeal concerned has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.

(see para. 78)
Procedural rules are generally held to apply to all proceedings pending at the time when those rules enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force. However, an exception to that principle has been allowed where the legislation contains both procedural and substantive rules, which form an indivisible whole and the individual provisions of which may not be considered in isolation with regard to the time at which they take effect. In such circumstances, the entirety of the provisions at issue may not be accorded retroactive effect unless sufficiently clear indications lead to such a conclusion.

As regards the substantial procedural changes introduced by Article 36 of Directive 2009/73, concerning common rules for the internal market in natural gas and repealing Directive 2003/55 to the rules governing the adoption of an exemption decision by the national authorities, with regard to the time at which they take effect, the latter cannot be considered in isolation from the substantive changes. First, the exemption procedure governed by that article is a single procedure, although it takes place partly at national level and partly at EU level. Accordingly, the changes that affect the national stage of the procedure cannot be assessed separately from those that affect the European Union stage. Secondly, the changes to the distribution of decision-making powers between the various actors involved in the procedure are considerable, and, in particular, are liable to have repercussions on the outcome of the procedure.

Accordingly, such changes form an indivisible whole, with the result that Article 36 as a whole may not be accorded retroactive effect unless sufficiently clear indications lead to such a conclusion. Such indications are not present where Directive 2009/73 provides in a precise manner, in Articles 53 and 54, the date from which the rules it lays down must be applied. By contrast, it contains no rules for the treatment of procedures pending at the time of its entry into force capable of justifying a derogation from the principle.

(see paras 24, 25, 27, 31-33, 36, 37)
Judgment of the General Court (Fourth Chamber) of 24 April 2012 — Leifheit v OHIM (EcoPerfect)

(Case T-328/11)

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

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 20, 35, 49, 58, 63)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 31 March 2011 (Case R 1658/2010‑1) concerning an application for registration of the word sign EcoPerfect as a Community trade mark.

Operative part

The Court:

1. Dismisses the application;

2. Orders Leifheit AG to pay the costs.

Judgment of the General Court (Fourth Chamber) of 24 April 2012 — Leifheit v OHIM (EcoPerfect)

(Case T-328/11)

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

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 20, 35, 49, 58, 63)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 31 March 2011 (Case R 1658/2010‑1) concerning an application for registration of the word sign EcoPerfect as a Community trade mark.

Operative part

The Court:

1. Dismisses the application;
Judgment of the General Court (Third Chamber) of 13 June 2012 — Hotel Reservation Service Robert Ragge v OHIM — Promotora Imperial (iHotel)

(Case T-277/11)

‛Community trade mark — Opposition proceedings — Application for Community word mark iHotel — Earlier Community figurative mark i-hotel — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34, 42, 73, 93, 96)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 24 February 2011 (Case R 832/2010-1) relating to opposition proceedings between Promotora Imperial SA and Hotel Reservation Service Robert Ragge GmbH.

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

—

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 Snickers and word mark KICKERS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27, 38, 47, 52, 54-56

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 9 August 2011 (Case R 2519/2010-4) relating to opposition proceedings between Società Italiana Calzature SpA and Hultafors Group AB.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Hultafors Group AB to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Società Italiana Calzature SpA in the proceedings before the General Court, and the costs incurred by Società Italiana Calzature SpA for the purposes of the proceedings before the Board of Appeal.
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 capable of designating the characteristics of a product or service — Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 10-13, 30)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Marks devoid of any distinctive character — Figurative mark PERLE' (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see paras 19, 22-27, 33)

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 — Existence of other ways of designating the same characteristics — Not relevant (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 31)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Mark devoid of distinctive character in part of the Union — Acquisition of distinctive character in that same part (Council Regulation No 207/2009, Art. 7(3)) (see paras 36-38)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 8 December 2010 (Case R 1249/2010-2) concerning the international registration, designating the European Community, of the figurative mark PERLE’.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Ferrari F.lli Lunelli SpA to pay the costs.
Judgment of the General Court (Seventh Chamber) of 17 May 2013 — Sanofi Pasteur MSD v OHIM — Mundipharma (Representation of two crossing sickles)

(Case T-502/11)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark representing two crossing sickles — Earlier national and international figurative marks representing two interlaced ribbons — Relative ground for refusal — No 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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 38, 53)

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 — Attention level of the public — Pharmaceutical products (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 42)

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 representing two crossing sickles and figurative marks representing two interlaced ribbons (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 44, 47-51, 62)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 45)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 22 July 2011 (Case R 1904/2010-4), relating to opposition proceedings between Sanofi Pasteur MSD SNC and Mundipharma AG.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Exclusion (Rules of Procedure of the General Court, Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 22)

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 — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27-31)

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 — Assessment criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 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 — Word mark ENDURACE and figurative mark ENDURANCE (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37-42, 46, 50-56, 66-82)

5. 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 47)

6. 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 — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 57-60)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 25 November 2010 (Case R 625/2010-1), concerning opposition proceedings between Endurance Technologies Pvt Ltd and Apollo Tyres AG.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Apollo Tyres AG to pay the costs.
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 — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23-26)