ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 26 September 2017 — Waldhausen v EUIPO (Representation of the silhouette of a horse’s head)

(Case T‑717/16)

(EU trade mark — Application for EU figurative mark representing the silhouette of a horse’s head — 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—Assessment of distinctive character—Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16-19, 41, 46)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Assessment of distinctive character—Criteria—Perception of the trade mark by the relevant public—Attention level of the public (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 23, 24, 31)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Figurative mark representing the silhouette of a horse’s head (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 28-30, 32, 36, 37, 42, 43, 48-53)

4. EU trade mark—Definition and acquisition of the EU trade mark—Application for registration of a sign for all the goods or services falling within the same category—Lack of distinctive character in relation only to certain products falling within that category not precluding recognition of lack of distinctiveness of the sign in relation to products in that category as a whole (Council Regulation No 207/2009, Art. 7(1)(b)) (see para 35)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any 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 (Council Regulation No 207/2009, Art. 7(1)(b)) (see para 47)

6. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para 56)

7. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice (Council Regulation No 207/2009) (see paras 58, 59)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 31 August 2016 (Case R 1195/2016-4), concerning an application for registration of a figurative sign representing the silhouette of a horse’s head as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (First Chamber) of 20 November 2017 – Stada Arzneimittel v EUIPO – Urgo recherche innovation and développement (Immunostad)

(Case T-403/16)

(EU trade mark — Invalidity proceedings — Application for the EU word mark Immunostad — Earlier national word mark ImmunoStim — Relative ground for refusal — Similarity of the trade marks — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)( a) of Regulation (EU) 2017/1001) — Non-negligible part of the relevant public — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 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 13, 14, 40, 41, 49, 50, 66)

2. EU trade mark–Surrender, revocation and invalidity–Relative grounds for invalidity–Existence of an identical or similar earlier mark registered for identical or similar goods or services–Word marks Immunostad and ImmunoStim (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 16, 17, 60)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 18)

4. EU trade mark–Procedural provisions–Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75, first sentence) (see para. 65)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 19 April 2016 (Case R 863/2015-5), relating to invalidity proceedings between Vivatech and Stada Arzneimittel.

Operative part

The General Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 13 October 2017 — Brouillard v Commission

(Case T‑572/16)

(Civil service — Recruitment — Competition notice — Open Competition EPSO/AD/306/15 — French-language lawyer-linguists at the Court of Justice of the European Union — Online application — Pre-selection based on qualifications — Qualifications required — Level of education corresponding to full legal education completed in a Belgian, French, or Luxembourg higher-education institution — ‘Master 2’ diploma (master’s degree) in law, economics and management, private law, lawyer-linguist specialism — Issued following ‘accreditation of skills gained through experience’ — Non-admission to the tests in a competition — Action for annulment — Content of the application — Inadmissibility — Professional competence — Full legal education requirement — Recognition of qualifications)

1. Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Clear and precise statement of the pleas relied on (Rules of Procedure of the European Civil Service Tribunal, Art. 50(1)(d) and (e)) (see paras 19, 20)

2. Officials—Recruitment—Competitions—Competition based on qualifications and tests—University diploma or degree required—Meaning of ‘diploma or degree’—Determination on the basis of the legislation of the Member State in which the studies took place (Staff Regulations, Annex III, Art. 5) (see paras 37, 54)

3. Officials—Competitions—Conditions for admission—Fixing by the competition notice—Requirement of specific qualifications—Lawfulness (Staff Regulations, Art. 5(3)(c),(i)) (see para. 49)

Re:

APPLICATION under Article 270 TFEU seeking annulment of, first, the decision of the European Personnel Selection Office (EPSO), communicated to the applicant by email of 24 September 2015, not to admit him to the next stage of ‘Open Competition EPSO/AD/306/15 based on qualifications and tests’ held for the purpose of drawing up reserve lists from which to recruit, among others, ‘French-language (FR) lawyer-linguists (AD 7)’ of the Court of Justice of the European Union and, second, the selection and appointment decisions taken in the context of that competition.

Operative part

The Court:

1. Annuls the decision of the European Personnel Selection Office (EPSO), communicated to Mr Alain Laurent Brouillard by email of 24 September 2015, not to admit him to the next stage of ‘Open Competition EPSO/AD/306/15 based on qualifications and tests’ held for the purpose of drawing up reserve lists from which to recruit, among others, ‘French-language (FR) lawyer-linguists (AD 7)’ of the Court of Justice of the European Union;

2. Dismisses the action as to the remainder;
Judgment of the General Court (Second Chamber) of 30 November 2017 – Hanso Holding v EUIPO (REAL)

(Case T-798/16)

(EU trade mark — Application for the EU figurative mark REAL — Absolute grounds for refusal — Descriptive character — No distinctive character — No distinctive character acquired through use — Article 7(1)(b) and (c) and (3) of Regulation (EC) No 207/2009 [now Article 7(1)(b) and (c) and (3) of Regulation (EU) 2017/1001])

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. 13)

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–Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 14, 15, 30, 34)

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 16, 17)

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 REAL (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 27, 47)

5. EU trade mark–Definition and acquisition of the EU trade mark–Absolute grounds for refusal–Marks devoid of any distinctive character–Exception–Distinctive character acquired through use–Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 38, 39, 42-45, 49, 50)

6. EU trade mark–Decisions of the Office–Legality–Examination by the EU judicature–Criteria (Council Regulation No 207/2009) (see para. 58)

7. EU trade mark–Decisions of the Office–Principle of equal treatment–Principle of sound administration–EUIPO’s previous decision-making practice (Council Regulation No 207/2009) (see paras 60-62)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 2 September 2016 (Case R 2405/2015-2), relating to the application for registration of the figurative sign REAL as a European Union trade mark.

Operative part

The Court:

1. Dismisses the action;
Having regard to the importance of the obligation to state reasons with regard to the rights of the defence of an official, it is only exceptionally that the context in which a decision not to promote an official is taken, limited to a list of promoted officials, which was impliedly upheld after a complaint was lodged, may constitute the initial elements of a statement of reasons for the decision. Thus, the initial elements of a statement of reasons cannot exist in the absence of any indication by the appointing authority concerning the applicant’s specific situation and the comparison of his merits with those of other officials eligible for promotion with regard to the criteria in Article 45 of the Staff Regulations. The knowledge that the applicant had of criteria to be taken into account in order to be promoted should not be confused with the knowledge of the way in which those criteria were applied to his situation.

Accepting that mere negative assessments made about an official in his evaluation reports may suffice as initial elements of a statement of reasons risks compromising the purpose of the pre-litigation procedure laid down in Article 90(2) of the Staff Regulations, that is, the amicable settlement of disputes which arise at the time of the complaint.

Such an approach would enable the appointing authority to rely on any negative assessment of a candidate not promoted and of which he was informed in order to avoid its obligation to inform him of a reasoned decision rejecting his complaint, deriving from Article 90(2), second paragraph, of the Staff Regulations and which constitutes a specific expression of the requirement to give reasons for any decision adversely affecting an official laid down in Article 25, second paragraph, of the Staff Regulations and the right to good administration guaranteed by Article 41 of the Charter of Fundamental Rights of the European Union.

Such a failure to respond to a complaint, which is brought against a decision not to promote an official which itself gives no reasons, is likely to give rise to or reinforce feelings of confusion or frustration and thereby create an atmosphere liable to result in the commencement of proceedings before the courts of the European Union which, if the appointing authority had acted with the diligence required, might have been avoided.

(see paras 46, 50, 63-65)
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. 37)
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, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 47)
Judgment of the General Court (Third Chamber) of 16 January 2018 — Starbucks v EUIPO — Nersesyan (COFFEE ROCKS)

(Case T‑398/16)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark COFFEE ROCKS — Earlier EU figurative marks STARBUCKS COFFEE — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Article 8(5) of Regulation No 207/2009 (now Article 8(5) 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, eighth recital and Art. 8(1)(b)) (see paras 16, 17, 69)

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 marks COFFEE ROCKS and STARBUCKS COFFEE (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see paras 18, 19, 60-66, 71, 72, 81-85)

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 45-47)

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—High distinctiveness of the earlier mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 70)

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—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Similarity of the marks concerned—Degree of similarity required (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see paras 76-79)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 24 May 2016 (Case R 559/2015-4), relating to opposition proceedings between Starbucks Corp. and Ms Hasmik Nersesyan.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 May 2016 (Case R 559/2015-4);
Approximation of laws—Registration, evaluation, authorisation and restriction of chemicals—REACH Regulation—Fees due to the European Chemicals Agency (ECHA)—Reduction in the fee for micro, small and medium-sized enterprises—Determination of the size of an enterprise—Consideration of related undertakings—Concept of related undertaking

(Commission Regulation No 340/2008, Art. 2; European Parliament and Council Directive No 2013/34, Art. 2, paras 11 and 12; Council Directive 83/349, as amended by Directive 2001/65, Arts 1 and 41; Commission recommendation 2003/361, Recitals 9 and 11 and Annex, Art. 3(3))

(see paras 45-48)
Judgment of the General Court (Sixth Chamber) of 17 May 2018 –

Josefsson v Parliament

(Case T‑566/16)

(Civil service — Members of the temporary staff — Contract for an indefinite period — Dismissal — Article 47(c)(i) of the CEOS — Manifest error of assessment — Right to be heard — Principle of sound administration — Duty to have regard for the welfare of staff)

1. Officials—Principles—Rights of defence—Dismissal of an agent due to the reorganisation of a political group in the Parliament employing him—Obligation to hear the person concerned before adopting a decision to dismiss him—Scope—Infringement—Consequences (Charter of Fundamental Rights of the European Union, Art. 41(2)) (see paras 30-36, 46, 49)

2. Officials—Non-contractual liability of the institutions—Conditions—Unlawfulness—Damage—Causal link—Cumulative conditions (Art. 340 TFEU) (see para. 53)

3. Actions brought by officials—Actions for damages—Annulment of the illegal act in dispute—Whether appropriate reparation for non-material damage—Dismissal of an agent in the absence of special circumstances (Staff Regulations of Officials, Art. 91) (see paras 54-57)

Re:

Application pursuant to Article 270 TFEU seeking, first, annulment of the decision of the Parliament’s authority empowered to conclude contracts of employment of 19 December 2014 to terminate the applicant’s contract as a member of the temporary staff and, secondly, compensation in respect of the non-material damage allegedly suffered by the applicant.

Operative part

The Court:

1. Annuls the decision of the Authority Empowered to Conclude Contracts of Employment of the European Parliament dated 19 December 2014 concerning the termination of Erik Josefsson’s contract as a member of the temporary staff;

2. Dismisses the action as to the remainder;
Officials—Staff of the European Central Bank—Annual salary and bonus review—Comparison of the performance of member of staff on sick leave with those working full time—Breach of the principle of equal treatment—None

(Charter of Fundamental Rights of the European Union, Arts 12 and 21)

(see paras 37, 39, 40)
A judgment annulling a measure takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system.

In order to comply with a judgment annulling a measure and to implement it fully, the institution responsible for adopting that measure is required to have regard not only to the operative part of the judgment but also to the grounds constituting its essential basis, in so far as they are necessary for the purposes of determining the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure.

(see paras 37, 38)
Judgment of the General Court (Appeal Chamber) of 19 July 2018 –

HG v Commission

(Case T‑693/16 P)

(Appeal — Civil service — Officials — Posting to a third country — Lodging provided by the administration — Disciplinary penalty — Dismissal of the action at first instance — Composition of the panel of judges which delivered the judgment at first instance — Procedure for appointment of a judge to the Civil Service Tribunal — Tribunal established by law — Principle of the lawful judge)

EU law—Principles—Fundamental rights—Compliance ensured by the EU judicature—Principle of the lawful judge—Irregularity in the procedure for appointment of a judge to the Civil Service Tribunal—Infringement of the said principle

(Charter of Fundamental Rights of the European Union, Art. 47, second para.)

(see paras 39, 41, 43-46)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 19 July 2016, HG v Commission (F‑149/15, EU:F:2016:155), seeking to have that judgment set aside.

Operative part

The Court:

1. Sets aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 19 July 2016, HG v Commission (F‑149/15);

2. Refers the case back to a chamber of the General Court other than the one which has ruled on the present appeal;
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—Marks devoid of any distinctive character—Word mark VANGUARD

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

(see paras 41, 45, 49, 51, 60, 63)
2.

Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether summary statement of reasons sufficient — Limits — Statement of reasons not capable of consisting of a general and stereotyped formulation (Art. 296, second para. TFEU; Council Decisions 2014/119/CFSP, (CFSP) 2015/364, (CFSP) 2015/876, (CFSP) 2016/318 and (CFSP) 2017/381; Council Regulations No 208/2014, 2015/357, 2015/869, 2016/311 and 2017/374) (see paras 72-75, 78)
Judicial proceedings — Absolute bar to proceeding — To be considered of the Court’s own motion

(Rules of Procedure of the General Court, Art. 129)

(see para. 56)
Agriculture — EAGF and EAFRD financing — Clearance of accounts — Financing of expenditure resulting from a misapplication of EU law — Condition — Error attributable to an EU institution

(Council Regulations No 1782/2003 and No 73/2009; Commission Regulations No 796/2004, Art. 2, first para., point 2, and No 1120/2009, Art. 2(c))

(see para. 57)
Judicial proceedings — Treatment of cases before the General Court — Protection given to parties against misuse of pleadings and other procedural documents — Scope

(Rules of Procedure of the General Court, Art. 89)

(see paras 49, 50)
Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Admissibility

(Rules of Procedure of the General Court, Arts 177(1)(d) and 84(1))

(see para. 57)
Common foreign and security policy — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Rights of defence — Notification of inculpatory evidence — Subsequent decision maintaining the name of a person on the list of persons concerned by those measures — No infringement of the right to be heard

(Charter of Fundamental Rights of the European Union, Arts 41(2), 47 and 52; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 50-55)
Judicial proceedings — Objection of inadmissibility — Power of the General Court to dismiss an action on the merits without ruling on the objection of inadmissibility — Extent of its discretion

(Rules of Procedure of the General Court, Arts 126 and 130)

(see para. 40)