ddrg/super_eurlex huggingface dataset:
52

Next, it is necessary to consider the deadline for sending the documents to the Technical Group. The applicants point out in that connection the inefficiency of the mechanism for consulting the Technical Group, in the light of the administration’s practice of sending out background documents only two days before the Technical Group meets, which makes it impossible to assess all the information needed for one hundred and twenty places of employment. In that regard, it should be noted that, although Article 4 of the Guidelines provides for consultation of the background documents by the Technical Group, there is no formal requirement either in the Guidelines or in the Decision of 17 February 2013 that sets a minimum deadline for sending out such documents. However, the absence of such a requirement does not exempt the EEAS from the requirement to act with due diligence, as part of its responsibilities, in order to ensure those documents are sent to the Technical Group sufficiently far in advance to enable it to carry out a full examination of them before delivering its opinion, given that those documents relate to one hundred and twenty places of employment. It is apparent from the documents in this case that Step 3 of the procedure for fixing the LCA was not completed until 21 January 2015, that the documents were not sent to the Technical Group until 23 January 2015 and that the latter gave its opinion on 26 January 2015. That timetable cannot be regarded as appropriate for considering there was proper consultation of that group. In addition, since the EEAS did not provide the reports that should have been adopted at the end of Step 2 and Step 3 of that procedure, it must be inferred that the Technical Group did not receive all the documents it needed in order to give its opinion.
12

In the first decision, the Board of Appeal first of all indicated that the relevant period for assessing the genuine use of the contested mark extended from 14 November 2006 up to and including 13 November 2011. Secondly, it held that the requirements relating to the place of use were fulfilled in the present case. Thirdly, in relation to the duration of use, it held, in essence, that, taken as a whole, the evidence submitted by Marpefa proved the ‘frequency’ and ‘regularity’ of use of the contested mark in the European Union, in particular between 2008 and 2011. Fourthly, as regards the nature of the use, the Board of Appeal found that the contested mark had not been used in a form which altered its distinctive character compared with the form in which it had been registered. Fifthly, the Board of Appeal took the view that an overall assessment of the evidence showed that the contested mark had been used to designate the goods referred to in paragraph 11 above. In that context, it held in particular, in paragraph 46 of the first decision, that it was clear that those goods were ‘electronic, audio and vision systems, goods and products that either [included] or [formed] part of “apparatus for the reproduction of sounds and images”’, that ‘they all [had] the same or similar nature and purpose and [were] not only complementary but intrinsically connected’, and that ‘they [belonged] to the “natural extension field”’ as defined by the Court in the judgment of 14 July 2005, Reckitt Benckiser (España) v OHIM — Aladin (ALADIN), T‑126/03, EU:T:2005:288. In paragraph 46, the Board further stated that the term ‘apparatus for the reproduction of sounds and images’ was defined sufficiently ‘precisely and narrowly’ to denote the goods for which use had been proved and that there was no valid reason to make any significant subdivisions within that category.
6

By decision of 21 July 2016 (‘the contested decision’), the Fifth Board of Appeal of EUIPO annulled the decision of the Cancellation Division in part in so far as it concerned the goods in Class 9, even though those goods were not the subject matter of the application for partial revocation filed by the intervener. On the basis of Article 51(1)(b) of Regulation No 207/2009, the appeal was dismissed as to the remainder. In that regard, first, the Board of Appeal stated, in paragraphs 23 to 27 of the contested decision, that the grounds for revocation had to be assessed as at the date of filing of the application for revocation. Second, in paragraphs 28 to 33 of the contested decision, it considered that the supposed transformation of the contested mark into a common name for the goods and services at issue had to be examined by taking into account the perception of Czech end users. Accordingly, it refused to examine the evidence to the contrary submitted by the applicant concerning its activities defending its trade mark in Member States other than the Czech Republic. Third, in paragraphs 34 to 47 of the contested decision, the Board of Appeal considered that the evidence which had been submitted during the course of the proceedings proved that the term ‘spinning’ had become, in the Czech Republic, the common name for a type of ‘exercise training’ and for the ‘exercise equipment’ used for that training. Fourth, in paragraphs 48 to 56 of the contested decision, it considered that the fact that the contested mark had become a common name was due to insufficient activity by the applicant to protect its trade mark in the Czech Republic. Fifth, in paragraphs 57 to 61 of the contested decision, it considered that several decisions of the Úřad průmyslového vlastnictví (Office of Industrial Property, Czech Republic) and the Czech courts confirmed that the applicant had not been sufficiently vigilant and had not made reasonable efforts to protect its trade mark in the Czech Republic.
117

As regards the first part of this plea, alleging, in essence, that the Commission acted ultra vires as it lacked a basis for setting the date on which the fines were payable at 10 May 2010, first, it should be recalled that, in accordance with settled case-law, the power conferred on the Commission covers the power to determine the date on which a fine is payable and that on which default interest begins to accrue, the power to set the rate of such interest and to determine the detailed arrangements for implementing its decision by requiring, where appropriate, the provision of a bank guarantee covering the principal amount of the fine imposed plus interest since, if the Commission had no such power, the advantage which undertakings might be able to derive from late payment of fines would weaken the effect of penalties imposed by the Commission when carrying out its task of ensuring that the rules on competition are applied (see judgment of 29 April 2015, Total and Elf Aquitaine v Commission, T‑470/11, EU:T:2015:241, paragraph 109 and the case-law cited).
28

The operative part of the contested decision is worded as follows: ‘Article 1 The Excess Profit exemption scheme, based on Article 185(2)(b) of the [CIR 92], pursuant to which [the Kingdom of] Belgium granted tax rulings to Belgian entities of multinational corporate groups authorising those entities to exempt part of their profit from corporate income taxation constitutes aid within the meaning of Article 107(1) [TFEU] that is incompatible with the internal market and that was unlawfully put into effect by Belgium in breach of Article 108(3) [TFEU]. Article 2 (1) [The Kingdom of] Belgium shall recover all incompatible and unlawful aid referred to in Article 1 from the recipients of that aid. (2) Any sums that remain unrecoverable from the recipients of the aid, following the recovery described in the paragraph 1, shall be recovered from the corporate group to which the recipient belongs. (3) The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery. (4) The interest on the sums to be recovered shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004. (5) [The Kingdom of] Belgium shall stop granting the aid referred to in Article 1 and shall cancel all outstanding payments of such aid with effect from the date of adoption of this decision. (6) [The Kingdom of] Belgium shall also reject all requests for an advance ruling concerning the aid referred to in Article 1 submitted to the Ruling Commission and pending on the date of the adoption of this decision. Article 3 (1) Recovery of the aid granted referred to in Article 1 shall be immediate and effective. (2) [The Kingdom of] Belgium shall ensure that this Decision is fully implemented within four months following the date of notification of this Decision. Article 4 (1) Within two months following notification of this Decision, [the Kingdom of] Belgium shall submit the following information: (a) the list of beneficiaries that have received the aid referred to in Article 1 and the total amount of aid received by each of them; (b) the total amount (principal and recovery interests) to be recovered from each beneficiary; (c) a detailed description of the measures already taken and planned to comply with this Decision; (d) documents demonstrating that the beneficiaries have been ordered to repay the aid. (2) [The Kingdom of] Belgium shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries. Article 5 This Decision is addressed to the Kingdom of Belgium.’
9

By decision of 5 October 2016 (‘the contested decision’), the First Board of Appeal of EUIPO partially upheld Wedl & Hofmann’s appeal and partially annulled the Cancellation Division’s decision in so far as the Board of Appeal maintained the registration of the contested mark in respect of ‘household, kitchen containers; glassware, porcelain, in particular tableware; glass beverage ware’ in Class 21 and ‘clothing, namely aprons, shirts, polo shirts and tee-shirts; headgear’ in Class 25 (‘the contested goods in Classes 21 and 25’). In particular, first of all, the Board of Appeal found that the evidence of use which Wedl & Hofmann had submitted late was admissible on the basis of Article 76(2) of Regulation No 207/2009 (now Article 95(2) of Regulation 2017/1001). In that regard, it stated, in paragraph 22 of the contested decision, that Article 76 of Regulation No 207/2009 granted EUIPO a discretion to decide whether or not to take facts and evidence submitted late into account and added that the Court of Justice had held that, as a general rule and unless otherwise specified, the submission of facts and evidence remained possible after the expiry of the time limits to which such submission was subject under the provisions of Regulation No 207/2009, and that EUIPO was in no way prohibited from taking account of facts and evidence which were submitted or produced late. Secondly, the Board of Appeal pointed out that outward use of a mark did not necessarily mean use aimed at end consumers and that it could not be ruled out that the use relied upon by Wedl & Hofmann was genuine solely because the commercial acts invoked by it were not directed at end consumers, but at industrial customers like licensees and franchisees. Consequently, the Board of Appeal found that Wedl & Hofmann had, on the basis of the evidence provided, proved genuine use of the contested mark as regards the contested goods in Classes 21 and 25. Lastly, the Board of Appeal found that the evidence was insufficient to prove that the contested mark had been used in connection with the remainder of the goods and services covered by the application for revocation.
Judgment of the General Court (Ninth Chamber) of 15 March 2018 — SSP Europe v EUIPO (SECURE DATA SPACE)

(Case T‑205/17)

(EU trade mark — Application for EU figurative mark SECURE DATA SPACE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) 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. 11)

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—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 12-14, 24, 33)

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—Word composed of elements describing characteristics of the goods or services concerned—Whether included where the nature of the combination is not unusual (Council Regulation No o 207/2009, Art. 7(1)(c)) (see para. 18)

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 SECURE DATA SPACE (Council Regulation No o 207/2009, Art. 7(1)(c)) (see paras 27, 28, 33-36)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 27 January 2017 (Case R 2467/2015-5) concerning an application for registration of the figurative sign SECURE DATA SPACE as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
It must be considered that it necessarily follows from the competence of the appointing authority of the institution of origin to decide on an official’s promotion in the year during which he is transferred, and from the fact that that competence is based on the need to compare the merits of officials who are colleagues in the same institution at the time when that comparison is made that the institution of origin in question must apply its own promotion system.

In accordance with the requirements of Article 45 of the Staff Regulations, where an official is eligible for promotion in the year during which he is transferred from one institution to another, the appointing authority which is competent to decide on his promotion is that of his institution of origin.

As regards promotion in cases of interinstitutional transfer, the merits of the officials transferred must be compared with those of the officials who were still their colleagues during the year preceding their transfer. In order to decide whether an official should be promoted retroactively on 1 January of year N, the appointing authority can, in practice, only consider the comparative past merits of officials, in particular during year N-1, in the light of the reports appraising the performance of those officials in year N-1 and previously.

Promotion is decided retroactively, as taking effect on a date when the official concerned was attached to the institution which is competent to decide on his promotion. Since the award of promotion presupposes that an established post vacancy corresponding to the grade in question is available, and since each institution fixes its own number of posts independently, pursuant to Article 6 of the Staff Regulations, and, in parallel, its list of vacant posts, the institution which is competent to decide on promotion may only promote the official concerned on a date on which it is in a position to appoint him to one of its vacant posts, in other words, in the period during which the official is attached to that institution.

It must accordingly be considered that points awarded in year N, under the pro rata temporis system, whether they relate to a consideration of comparative merits for year N, or simply result from a notional extrapolation of the comparison of merits conducted for year N-1, can only be granted as long as the official concerned is attached to the institution competent to assess the comparative merits and, therefore, to decide on promotion. In so far as the award of those points, like the subsequent actions of the Joint Committee on Promotions and the appointing authority, forms part of the promotion exercise for year N, for the purpose of determining the promotion date of the official concerned, those points can only be granted up to the date on which the institution remains competent to compare the applicant’s merits with those of his colleagues in that institution and is capable of promoting him, in other words, in the present case, the date of the applicant’s transfer to.

(see paras 37, 38, 40)
Judgment of the General Court (Seventh Chamber) of 4 May 2018 –

Bernard Krone Holding v EUIPO (Mega Liner)

(Case T‑187/17)

(EU trade mark — Application for EU word mark Mega Liner — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75, first sentence, of Regulation No 207/2009 (now Article 94(1) of Regulation 2017/1001))

1. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 21)

2. Actions for annulment—Pleas in law—Infringement of essential procedural requirements—Inadequate statement of reasons—To be considered of the Court’s own motion—Obligation to comply with the audi ateram partem principle (Arts 263 TFEU and 296 TFEU) (see para. 22)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 442/2016-1) concerning an application for registration of the word mark Mega Liner as an EU trade mark.

Operative part

The Court:

1. Annuls paragraph 2 of the operative part of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 January 2017 (Case R 442/2016–1);
Judgment of the General Court (Fifth Chamber) of 13 March 2018 — Hotelbeds Spain v EUIPO — Guidigo Europe (Guidego what to do next)

(Case T‑346/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark Guidego what to do next — Earlier EU word mark GUIDIGO — 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 19, 20, 60)

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—Earlier trade mark constituted by an EU trade mark—Refusal to register on a ground relating to refusal even limited to part of the Union (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 63)

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—Assessment of the likelihood of confusion—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)

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—Similarity of the marks concerned—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 26, 54)

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—Similarity of the marks concerned—Visual similarity between a figurative mark and a word mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 34)

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—Figurative mark Guidego what to do next and word mark GUIDIGO (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 41-47, 57-59, 68)

7. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice—Principle of legality (see para. 67)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 21 March 2017 (Case R 449/2016-4), relating to opposition proceedings between Guidigo Europe and Hotelbeds Spain.

Operative part

The Court:

1. Dismisses the action;
Officials—Members of the temporary staff—Recruitment—Renewal of a fixed-term contract—Administration’s discretion—Administration’s duty to have regard for the interests of officials—Account taken of the interests of the staff member concerned—Limits

(Conditions of Employment of Other Servants of the European Communities, Art. 8)

(see paras 64-67, 76)
Questions referred for a preliminary ruling—Reference to the Court—Questions formulated in the context of opposition proceedings before the General Court—Inadmissibility

(Arts 256 TFEU and 267 TFEU; Statute of the Court of Justice, Art. 50a and 51)

(see paras 20, 21)
Judgment of the General Court (Fifth Chamber) of 27 September 2018 –

Wilhelm Sihn jr. v EUIPO — in-edit (Camele’on)

(Case T‑472/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark Camele’on — Earlier international and national word marks CHAMELEON — Relative ground for refusal — No similarity — No 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 16, 17)

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 between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 18)

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—Figurative mark Camele’on and word marks CHAMELEON (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 29, 31, 38, 40, 41)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 25 May 2017 (Case R 570/2016-4), relating to opposition proceedings between Wilhelm Sihn jr. and in-edit.

Operative part

The Court:

1. Dismisses the action;