ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Ninth Chamber) of 26 October 2017 – Sulayr Global Service v EUIPO – Sulayr Calidad (sulayr GLOBAL SERVICE)

(Case T-685/15)

(EU trade mark — Opposition proceedings — Application for EU figurative mark sulayr GLOBAL SERVICE — Earlier national word mark SULAYR — Relative ground for refusal — No similarity of the services — 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 23, 24)

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)) (voir point 26)

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 between the goods or services in question–Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33, 34)

4. EU trade mark–Appeals procedure–Action before the EU judicature–Jurisdiction of the General Court–Review of the lawfulness of decisions of the Boards of Appeal (Council Regulation No 207/2009, Art. 65(2)) (see para. 39)

5. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Likelihood of confusion with the earlier mark–Figurative mark sulayr GLOBAL SERVICE and word mark SULAYR (Council Regulation No 207/2009, Art. 8(1)(b))) (see paras 47-49)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 September 2015 (Case R 149/2015-1), relating to opposition proceedings between Sulayr Calidad and Sulayr Global Service.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 September 2015 (Case R 149/2015-1) to the extent that it upheld the opposition to registration of the mark applied for in respect of services in Class 40;

2. Orders EUIPO to bear its own costs and to pay those incurred by Sulayr Global Service, SL, for the purpose of the proceedings before the Court;
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Examination of the grounds for refusal having regard to each of the products or services covered by the application for registration—Obligation to state the reasons for refusing to register—Scope

(Council Regulation No 207/2009, Arts 7(1) and 75, first sentence)

(see paras 35-39)
Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the procedure for the award of a public service contract, not to accept a tender

(Arts 263 TFEU and 296, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161(2))

(see paras 22, 23, 27, 28)
The concept of State aid must be applied to an objective situation, which means that, in order to be classified as aid, a measure must be capable of affecting trade between the Member States and distorting or threatening to distort competition, matters which fall to be appraised on the date on which the Commission takes its decision, the sole test being whether a State measure confers an advantage on one or more particular undertakings. Accordingly, the Commission’s decision-making practice in the area cannot be a decisive factor.

The private creditor test, or the private investor test, is not an exception which applies only if a Member State so requests, when all the constituent elements of State aid incompatible with the common market, as laid down in Article 107(1) TFEU, exist. In fact, that test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists. Consequently, where it appears that the private creditor test might be applicable, it is incumbent on the Commission to examine that possibility, irrespective of any request to that effect from the Member State concerned; and, accordingly, nothing prevents the recipient of the aid from arguing the applicability of the test.

In either of the latter two cases where the Member State does not invoke the private investor test, it is necessary, in order to determine whether the test is applicable, to take as a starting point the economic nature of the Member State’s action, not how that Member State, subjectively speaking, thought it was acting or which alternative courses of action it considered before adopting the measure in question.

Moreover, in order to assess whether the same measure would have been adopted under normal market conditions by a private investor in a situation as similar as possible to that of the State in question, only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account.

(see paras 240-242, 245)
1.

Competition — EU rules — Infringements — Attribution — Infringement committed by a body not seizing to exist and continued by another body succeeding it in the business on the market concerned — Attribution of the whole of the infringement to that other body — Lawfulness — Existence of a situation of economic continuity — Criteria for assessment (Art. 101 TFEU) (see paras 21, 39-43, 49-51)
Judicial proceedings — Decision or regulation replacing the contested measure in the course of proceedings — New factor — Extension of the initial pleadings — Application to amend annulment plea — Time-limit for the submission of such an application — Point from which time starts to run — Date of communication of the new measure to the applicant

(Art. 263, 6th para. TFEU; Rules of Procedure of the General Court, Arts 60 and 86(1))

(see paras 43, 44, 50, 51)
99

That is also confirmed by paragraphs 20 to 22 of the originating application. In those paragraphs the applicants stated as follows: ‘As regards Contract ESP EISD 5, when the applicants received the contested decisions and the supplementary documents they made the following observations: (a) Regarding Lot 1, they observed that the Nextera1 consortium, of which Engineering Ingegneria Informatica SPA is a member, obtained 38.78 points in the evaluation of its financial tender whereas the [applicants’ tender] received 35.46 points … Therefore the Nextera1 consortium’s tender was 8.56% lower than the applicants’ tender (whereas the tender of the Encripta consortium of which Engineering Ingegneria Informatica SPA was also a member for Lot 1 of Contract ESP EISD 4 was 23.73% higher. Therefore, the tender of the consortium of which that company is a member was abnormally low for Contract ESP EISD 5. (b) Regarding Lot 2, they observed that Intrasoft International SA received 39.04 points in the evaluation of its financial tender, whereas the applicants received 26.23 points … Therefore, Intrasoft International SA’s tender was then 32.81% lower than that of the applicants (while the tender submitted by the same company for Lot 2 of Contract ESP EISD 4 was scarcely 3.45% lower). In that case also Intrasoft International’s tender was abnormally low. … Aware that their financial tender was already low (but at a normal level), the applicants only explanation for that great difference in the scoring of the financial tenders, which appeared for the first time in Contract ESP EISD 5 is that the successful consortia made abnormally low tenders. That conclusion is also confirmed by the fact that, for Contract ESP EISD 4 whose subject matter was the same services and a similar description of the various lots, the applicants’ financial tender (which were ranked in first place for each of the three lots) was either lower in price than all the others (Lot 1), slightly higher (Lots 2 and 3). Therefore, the prices of those tenders may be a clear and certain benchmark for the prices observed on the market and the normal level of prices which should have been proposed for Contract ESP EISD 5. However, for the contract at issue, four consortia (Nextera1, On Trace, Intrasoft/Charles Oakes, Atos Integration) proposed prices lower for Lot 1 (Atos Integration even proposed prices of 11.35% lower), whereas for Lot 2 the [successful tenders] were even more abnormally low than that of the applicants (Atos Belgium SA, 34.42% lower, Intrasoft International SA 32.81% and Nextera2 19.36%) … The information set out above shows that the financial tenders of the successful consortia in the two lots of the contract at issue had the characteristics of an abnormally low tender as compared with the prices of the market.’
25

On that basis, the Commission adopted the contested decision. The operative part of the contested decision reads as follows: ‘Article 1 Decision 2014/883/EU is withdrawn. Article 2 1. The capital injections in favour of [PLGK] between 28 August 2007 and 17 June 2013 constitute State aid which has been unlawfully put into effect by [the Republic of] Poland in breach of Article 108(3) [TFEU] and which is incompatible with the internal market, except in so far as these capital injections were spent on investments necessary to carry out the activities that according to the [opening] decision must be considered as falling within the public policy remit. 2. The capital injections which [the Republic of] Poland is planning to implement in favour of [PLGK] after 17 June 2013 for the conversion of the Gdynia-Kosakowo military airfield into a civil aviation airport constitute State aid which is incompatible with the internal market. The State aid may accordingly not be implemented. Article 3 1 [The Republic of] Poland shall recover the aid referred to in Article 2(1) from the beneficiary. 2 The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery. The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 [of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1)]. 3 [The Republic of] Poland shall cancel all outstanding payments of the aid referred to in Article 2(2) with effect from the date of notification of this Decision. Article 4 1 Recovery of the aid referred to in Article 2(1) and the interest referred to in Article 3(2) shall be immediate and effective. 2 [The Republic of] Poland shall ensure that this Decision is implemented within four months following the date of notification of this Decision. Article 5 1 Within two months following notification of this Decision, [the Republic of] Poland shall submit the following information to the Commission: (a) the total amount (principal and recovery interest) to be recovered from the beneficiary; (b) a detailed description of the measures already taken and planned to comply with this Decision; (c) documents demonstrating that the beneficiary has been ordered to repay the aid. 2. [The Republic of] Poland 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 2(1) and the interest referred to in Article 3(2) 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 beneficiary. Article 6 This Decision is addressed to the Republic of Poland.’
37

Secondly, the applicant submits that the formal investigation procedure must be legitimate for the contested decision to be valid. According to the applicant, a lawful initiating decision must have a clearly defined subject matter as the Commission is always able to adopt an extension decision, if necessary. According to the applicant, where the Commission goes beyond the subject matter of the initiating decision, the interested parties’ rights of defence and right to be heard are infringed. Such an error must be examined by the Court of its own motion and result, unconditionally, in the contested decision being annulled. It adds that, even though, from a formal point of view, only the Member State is the addressee of the Commission’s decisions, the third parties concerned, which are directly interested, must also be granted the right to be heard and the right to participate in the proceedings. Moreover, the applicant’s right to be involved in the administrative procedure to an appropriate extent has been infringed. Furthermore, the applicant submits that it is entitled to invoke in proceedings an infringement of the rights of defence of the Federal State as an entity pursuing the case on its behalf. Lastly, the applicant confirmed, at the hearing, that the infringement of the rights of defence and that of the right to be involved in the administrative procedure were two separate complaints which had been grouped under the same plea.
Judgment of the General Court (Fourth Chamber) of 31 January 2017 — Coesia v EUIPO (Representation of two red oblique curves)

(Case T‑130/16)

(EU trade mark — Application for registration of an EU figurative mark representing two red oblique curves — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Obligation to assess the distinctiveness of a mark by reference to the perception which the relevant public has of it)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment — 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 paras 11-14)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Sign composed of a basic geometric figure (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 15)

3. 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 20-22)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 26 January 2016 (Case R 1933/2015-2) concerning an application for registration of a figurative sign representing two red oblique curves.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 January 2016 (Case R 1933/2015-2);
Judgment of the General Court (Third Chamber) of 14 December 2016 — Grid applications v EUIPO (APlan)

(Case T‑154/16)

(European Union trade mark — Application for EU word mark APlan — Absolute ground for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 207/2009)

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. 22)

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 23, 24, 31)

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 mark APlan (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 28, 32, 36)

4. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 38-40)

5. EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see para. 42)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 15 February 2016 (Case R 1819/2015-4) concerning an application for registration of work sign APlan as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 6 April 2017 —

Aldi v EUIPO (ViSAGE)

(Case T‑219/16)

(EU trade mark — Application for the EU figurative mark ViSAGE — Absolute grounds for refusal — Descriptiveness — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

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—Criteria (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—Figurative mark ViSAGE (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 14, 18-20)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 19 February 2016 (Case R 507/2015-5) concerning an application for registration of the figurative sign ViSAGE as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope

(Council Regulation No 207/2009, Arts 7(1), and 75, first sentence)

(see paras 16-18)
Article 53(3) of Regulation No 207/2009 on the EU trade mark provides that an EU trade mark may not be declared invalid where the proprietor of a right referred to in paragraphs 1 or 2 consents expressly to the registration of that mark before submission of the application for a declaration of invalidity or the counterclaim.

Article 53(3) of Regulation No 207/2009 therefore requires that the proprietor of an earlier right have consented expressly to the registration of an EU mark in order to be prevented from subsequently submitting an application for a declaration that that mark is invalid.

Thus, in a case where the proprietor of disputed trade marks maintained that the applicants for a declaration that those marks were invalid, owing to a likelihood of confusion, had consented to the registration of the marks through, in particular, peaceful coexistence and a coexistence agreement, the General Court has observed that the agreement of the proprietor of the right must be express for the registration of a sign that might result in a likelihood of confusion to be permitted. The General Court inferred, first, that peaceful coexistence of the marks could not take the place of express consent for the purposes of Article 53(3) of Regulation No 207/2009. Secondly, as regards the coexistence agreement, the General Court, after pointing out that that agreement did not concern the contested marks, but a different mark, stated that the agreement could not be interpreted in such a way as to extend beyond its scope without the express consent of the parties, for the purposes of Article 53(3) of Regulation No 207/2009.

(see paras 38-40)
Judgment of the General Court (Third Chamber) of 5 April 2017 —

Anta (China) v EUIPO (Representation of two lines forming an acute angle)

(Case T‑291/16)

(EU trade mark — Application for an EU figurative mark representing two lines forming an acute angle — Absolute ground for refusal — Lack of 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—Concept—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15-17, 28, 52)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Figurative mark representing two lines forming an acute angle (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 21, 26, 32, 33, 44)

3. 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 paras 29-31)

4. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Registration of a new trade mark—Absolute grounds for refusal—Burden of proof (Council Regulation No 207/2009, Arts 7(1), and 76(1)) (see para. 41)

5. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 46)

6. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice—Principle of legality—Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 47-49)

7. EU trade mark—Definition and acquisition of the EU trade mark—Assessment of the registrability of a sign—EU rules only taken into account—Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see para. 56)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 9 March 2016 (Case R 1292/2015-5) concerning an application for registration of a figurative sign representing two lines forming an acute angle as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
1.

Sets aside the judgment of the European Union Civil Service Tribunal (sitting as a single judge) of 21 July 2016, CC v Parliament (F‑9/12 RENV), in so far as the Civil Service Tribunal, first, calculated the loss of opportunity for Ms CC to be recruited as a probationary official by the Council of the European Union by excluding the period from 16 February 2006 to 31 August 2007, and secondly, calculated the loss of opportunity for Ms CC to be recruited as a probationary official by the other institutions and bodies of the European Union using a different method from that which it used in relation to the Council;