ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 – Duro Sweden v OHIM (EASYCOVER)

(Case T-346/07)

Community trade mark – Application for the Community word mark EASYCOVER – Absolute grounds for refusal – Article 7(1)(b) and (c) of Regulation (EC) No 40/94 – Article 73 of Regulation No 40/94

1. 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 40/94, Art. 7(1)(c)) (see paras 54-55, 63, 67-68)

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 75-76)

3. Community trade mark – Decisions of the Office – Observance of the rights of the defence (Council Regulation No 40/94, Art. 73) (see paras 79-80)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 July 2007 (Case R 1065/2005-4) relating to an application for registration of the word mark EASYCOVER as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Duro Sweden AB Community trade mark sought: Word mark EASYCOVER for goods in Classes 19, 24 and 27 – Application No 4114567 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2007 (Case R 1065/2005 4) as regards goods in the category ‘monuments, not of metal’;

2. Dismisses the action as to the remainder;
Judgment of the Court of First Instance (Fourth Chamber) of 17 June 2009 – Korsch v OHIM (PharmaResearch)

(Case T-464/07)

Community trade mark – Application for the Community word mark PharmaResearch – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009) – Restriction of the goods designated in the trade mark application

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 40/94, Art. 7(1)(c)) (see paras 30, 37, 42)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 18 October 2007 (Case R 924/2007-4) concerning an application for registration of the word sign PharmaResearch as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Korsch AG Community trade mark sought: Word mark ‘PharmaResearch’ for goods and services in Class 9 – Application No 5309836 Decision of the Examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 – Promomadrid v OHIM (MADRIDEXPORTA)

(Case T-180/07)

Community trade mark – Application for Community figurative mark MADRIDEXPORTA – Absolute grounds for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now 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 40/94, Art. 7(1)(c)) (see paras 26, 38)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 7 March 2007 (Case R 1130/2006-1) concerning an application for registration of the figurative mark MADRIDEXPORTA as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Promomadrid Desarrollo Internacional de Madrid, SA Community trade mark sought: Composite mark MADRIDEXPORTA for goods and services in Classes 16, 35, 36, 38, 39, 41 and 42 – Application No 4659553 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 March 2007 (Case R 1130/2006-1);
Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 – DSV Road v Commission

(Case T-219/07)

Customs union – Importation of diskettes originating in Thailand – Post-clearance recovery of import duties – Application for remission of import duties – Articles 220(2)(b) and 239 of Regulation (EC) No 2913/92

1. Own resources of the European Communities – Post-clearance recovery of import or export duties (Council Regulation No 2913/92, Art. 220(2)(b)); Commission Regulation No 2454/93, Art. 81(6)) (see paras 35-38, 40)

2. Own resources of the European Communities – Repayment or remission of import duties – Fairness clause established by Article 239 of the Community Customs Code (Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Art. 904(c)) (see paras 55-57)

Re:

APPLICATION for annulment of the Commission decision of 24 April 2007 informing the Belgian authorities that they may proceed with post-clearance recovery of import duties on diskettes originating in Thailand and that there are no grounds for granting remission of those duties (file reference REC 05/02).

Operative part

The Court:

1. Dismisses the application;
Judgment of the Court of First Instance (Third Chamber) of 30 November 2009 – Esber v OHIM – Coloris Global Coloring Concept (COLORIS)

(Case T-353/07)

Community trade mark – Opposition proceedings – Application for Community figurative mark COLORIS – Earlier national word mark COLORIS – Relative ground for refusal – Genuine use of the earlier trade mark – Article 15(2)(a) and Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 15(1)(a) and Article 42(2) and (3) of Regulation (EC) No 207/2009)

Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Use in a form without differences capable of affecting the distinctive character of the trade mark (Council Regulation No 40/94, Arts 15(2)(a) and 43(2) and (3)) (see paras 36, 50)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1060/2006‑1), concerning opposition proceedings between Coloris Global Coloring Concept and Esber, SA.

Information relating to the case

Applicant for the Community trade mark: Esber, SA Community trade mark sought: Figurative mark containing the word COLORIS for goods in Class 2 – Application No 2817732 Proprietor of the mark or sign cited in the opposition proceedings: Coloris Global Coloring Concept Mark or sign cited in opposition: French national word mark COLORIS for goods in Class 2 (No 98/717642) Decision of the Opposition Division: Opposition upheld Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;

2. Orders Esber, SA to pay the costs.
Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 – France v Commission

(Case T-432/07)

EAGGF – Guarantee Section – Expenditure excluded from Community financing – Fruit and vegetables – Conditions for recognition of producers’ organisations

1. Agriculture – Common organisation of the markets – Fruit and vegetables – Producers’ organisations – EAGGF financing – Recognition of those organisations by the national authorities – Conditions (Council Regulations Nos 1035/72 and 2200/96, Art. 11(1)(b) and (2)(d)) (see paras 35-37)

2. Agriculture – Common organisation of the markets – Fruit and vegetables – Producers’ organisations – EAGGF financing – Recognition of those organisations by the national authorities – Conditions (Council Regulation No 2200/96, Art. 11(1)(c)) (see paras 54-56)

Re:

APPLICATION for annulment of Commission Decision 2007/647/EC of 3 October 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2007 L 261, p. 28), in so far as it excludes certain expenditure incurred by the French Republic for producers’ organisations in the fruit and vegetable sector.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 21 January 2010 – Goncharov v OHIM – DSB (DSBW)

(Case T-34/07)

Community trade mark – Opposition proceedings – Application for the Community word mark DSBW – Earlier Community word mark DSB – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now 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 40/94, Art. 8(1)(b)) (see paras 29, 52-54)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 4 December 2006 (Case R 1330/2005-2), relating to opposition proceedings between DSB and Mr K. Goncharov.

Information relating to the case

Applicant for the Community trade mark: Karen Goncharov Community trade mark sought: The word mark DSBW for services in Classes 39, 41, 43 and 44 – Application No 2 852 143 Proprietor of the mark or sign cited in the opposition proceedings: DSB Mark or sign cited in opposition: The word mark DSB (Community trade mark No 2292290) for services in Classes 35 to 37, 39, 41 and 42, the opposition being directed against registration in Classes 39, 41 and 43 Decision of the Opposition Division: Opposition dismissed Decision of the Board of Appeal: Annulment of the contested decision and appeal allowed





Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 15 September 2011 – CMB and Christof v Commission

(Case T-407/07)

Public supply contracts – EAR procurement procedure – Supply of equipment for the treatment of medical waste – Rejection of the tender – Action for annulment – Jurisdiction of the General Court – Period allowed for commencing proceedings – Preliminary administrative complaint – Excusable error – Award criteria – Procedural rules – Duty to state reasons – Principle of sound administration – Non-contractual liability

1. European Union law – Principles – Right to effective judicial protection – Applicability to measures adopted by agencies established on the basis of secondary law producing legal effects vis-à-vis third parties (Art. 230 EC) (see paras 57-58)

2. Actions for annulment – Actionable measures – Measures producing binding legal effects – Decisions taken by the European Agency for Reconstruction in the context of procedures for awarding public contracts – Included (Art. 230, first para., EC) (see paras 59-61)

3. Actions for annulment – Action against a decision confirming an earlier measure not challenged within the time-limits – Inadmissibility – Meaning of confirmatory decision – Decision adopted following an application raising new and substantial facts – Not included (Art. 263 TFEU) (see paras 89-93)

4. Procedure – Time-limit for instituting proceedings – Claim barred by lapse of time – Excusable error – Concept – Procedures for amicable settlement provided for in the call for tenders – Tenderer using such a procedure – Included (see paras 99, 103)

5. European Union public contracts – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see para. 115)

6. European Union budget – Financial regulation – Provisions applicable to procedures for awarding public contracts – Scope – Public contracts awarded by bodies created by the Communities, having legal personality and receiving subsidies from the EU budget – Included (Council Regulation No 2988/95, Art. 167(1), and No 2666/2000, Art. 7(1); Commission Regulation No 2343/2002, Art. 74) (see paras 153-157)

7. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service contract not to accept a tender (Art. 253 EC) (see paras 170-172, 177)

Re:

First, application for annulment of the decision of the European Agency for Reconstruction rejecting the tender made by the applicants in response to invitation to tender EuropeAid/124192/D/SUP/YU concerning the supply of equipment for medical waste management (OJ 2006 S 233 248826) and awarding the contract to another tenderer, and, second, application for damages.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 17 January 2012 – Italy v Commission

(Case T-135/07)

Health policy – Avian influenza – Italian market in poultrymeat – Request of the Italian authorities to adopt exceptional measures to support the market – Commission decision rejecting that request

1. Agriculture – Common organisation of the markets – Poultrymeat – Discrimination between producers or consumers – Prohibition – Scope – Discretion of EU institutions with regard to the Common Agricultural Policy – Judicial review – Scope (Art. 34(2), second para., EC; Council Regulation No 2777/75, Art. 14) (see paras 53-57, 68-69)

2. Agriculture – Common organisation of the markets – Poultrymeat – Market support measures in the egg sector – Commission decision declining to adopt exceptional support measures for the poultrymeat market – Decision making a distinction between economic losses caused by the destruction of one-day-old chicks and those of hatching eggs already incubated – Principle of non-discrimination – Infringement (Art. 34(2), second para., EC; Council Regulation No 2777/75, Art. 14; Commission Regulation No 2102/2004) (see paras 87-89, 98-99)

Re:

APPLICATION for annulment of the Commission’s decision of 7 February 2007 rejecting the request of the Italian authorities to adopt exceptional measures to support the Italian market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (OJ 1975 L 282, p. 77).

Operative part

The Court:

1. Annuls the Commission’s decision of 7 February 2007 rejecting the request of the Italian authorities to adopt exceptional measures to support the Italian market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat;
Judgment of the Court of First Instance (Eighth Chamber) of 11 June 2009 — Baldesberger v OHIM (Shape of tweezers)

(Case T-78/08)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of tweezers — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)’

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 25, 28-30)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 12 December 2007 (Case R 1405/2007-4) regarding an application for registration of a three-dimensional sign in the shape of tweezers as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Fides B. Baldesberger Community trade mark sought: Three-dimensional mark depicting tweezers, for goods in class 8 — Application No 5480108 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed

Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Fifth Chamber) of 9 July 2009 — Biotronik v OHIM (BioMonitor)

(Case T-257/08)

‛Community trade mark — Application for Community word mark BioMonitor — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now 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 40/94, Art. 7(1)(c)) (see paras 22, 30)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 24 April 2008 (Case R 466/2007-4) concerning an application for registration of the word sign BioMonitor as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Biotronik GmbH & Co. KG Community trade mark sought: Word mark ‘BioMonitor’ for goods and services in Classes 9, 10 and 38, the list of goods being subsequently limited to goods in Class 10 — Application No 4556023 Decision of the Examiner: Application rejected Decision of the Board of Appeal: Appeal dismissed

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

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods

–

Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b) and (c)) (see paras 27, 37-44, 50

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 September 2008 (Case R 1656/2007‑4), concerning registration of the word sign SUPERSKIN as a Community trade mark.

Information relating to the case

>lt>8

Operative part

Operative part:

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 September 2008 (Case R 1656/2007‑4), in respect of perfumes, nail and hair care preparations, antiperspirants, deodorants, dentifrice, hair colouring preparations, hair spray, eyecare preparations, nail varnish, nail varnish remover and artificial nails, in Class 3, and hygienic care and cosmetic treatments for the hair, in Class 44;

2. Dismisses the action as to the remainder;

3. Orders Liz Earle Beauty Co. Ltd to bear its own costs and to pay half of OHIM’s costs, and OHIM to bear the other half of its costs.
Case T-137/08

BCS SpA

v

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

‛Community trade mark — Invalidity proceedings — Community trade mark consisting of a combination of the colours green and yellow — Absolute ground for refusal — Distinctive character acquired through use — Article 7(3) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) — Relative ground for refusal — Earlier unregistered national mark consisting of a combination of the colours green and yellow — Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)’

Judgment of the Court of First Instance (Eighth Chamber), 28 October 2009 II ‐ 4050

Summary of the Judgment

Although a Community trade mark in respect of which there is an absolute ground for refusal under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark throughout the Community must have become distinctive through use likewise throughout the Community in order to be registrable under Article 7(3) of that regulation, the same types of evidence do not have to be provided in respect of each Member State. The absence of an opinion poll designed to assess the way in which the mark at issue was perceived by the relevant public in the European Union does not preclude a sign’s being shown to have acquired distinctive character through use, as other evidence may serve to show that that is the case. It is not absolutely necessary to carry out an opinion poll for the purposes of concluding that a sign has acquired distinctive character through use. (see paras 39-41)

On a market where the goods constitute industrial goods the price of which is high and the purchase of which is preceded by a process during which the consumer inquires attentively about the range on offer by comparing and inspecting the various competing models, it is not necessary for a mark to achieve a large market share for it to be possible to conclude that the relevant consumers have retained it in their minds. It is sufficient that the mark at issue be proved to have a strong and long-lasting presence on the market. (see paras 43, 44)

Registration as a Community trade mark of the figurative mark representing a combination of the colours green and yellow for ‘Attached, pushed or self-propelled agricultural and forestry machines’ and ‘Self-propelled agricultural and forestry machines, in particular farm tractors, small tractors, land tractors and trailers’ in Classes 7 and 12 of the Nice Agreement should not have been refused on account of the absolute ground for refusal under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark in so far as it was proved to the required legal standard that that mark had become distinctive through use within the terms of Article 7(3) of that regulation by the date on which the application for registration was filed. (see para. 62)
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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 15, 27-30

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 21 May 2008 (Case R 1679/2007-2) relating to opposition proceedings between Grupo Corporativo Teype, SL and REWE-Zentral AG.

Information relating to the case

>lt>3

Operative part

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of OHIM of 21 May 2008 (Case R 1679/2007-2);

2. Orders OHIM to pay the costs.
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 which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 18, 28, 35

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 September 2008 (Case R 816/2008‑2) concerning an application for registration of the word mark SUDOKU SAMURAI BINGO as a Community trade mark.

Information relating to the case

>lt>12

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Monoscoop BV to pay the costs.