ddrg/super_eurlex huggingface dataset:
The institutions have a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, of the interests of the service.

Specifically as regards conditions limiting the registration of candidates for a competition, although such conditions are indeed liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that provision. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, allows the institution to impose the conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, do not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations.

Accordingly, it is only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard that are held to be contrary to the first paragraph of Article 27 of the Staff Regulations.

Furthermore, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and proper bounds and did not manifestly misuse its discretion.

(see paras 28-30, 32, 33)
Judgment of the General Court (Third Chamber) of 17 October 2018 –

Szabados v EUIPO — Sociedad Española de Neumología y Cirugía Torácica (Separ) (MicroSepar)

(Case T‑788/17)

(EU trade mark — Opposition proceedings — Application for EU word mark MicroSepar — Earlier EU figurative mark SeparSolidaria — 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 16, 17, 37)

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—Assessment of the likelihood of confusion—Determination of the relevant public—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27)

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—Word mark MicroSepar and figurative mark SeparSolidaria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 32, 34-36, 40-43)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 21 September 2017 (Case R 2420/2016-1), relating to opposition proceedings between M. Andreas Szabados and Sociedad Española de Neumología y Cirugía Torácica.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 11 October 2018 –

M&T Emporia Ilektrikon-Ilektronikon Eidon v EUIPO (fluo.)

(Case T‑120/17)

(EU trade mark — Application for EU figurative mark fluo. — Partial rejection of the application for registration — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

1. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Direction issued to the Office @ Direction addressed to the Office—Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 13)

2. 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—Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies—Not included (Council Regulation No 207/2009, Art. 65) (see para. 16)

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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 22)

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—Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 23, 24)

5. 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 para. 25)

6. 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 fluo. (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 26, 34-43)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 2 December 2016 (Case R 863/2016-2), relating to the application for registration of the figurative sign fluo. as a European Union trade mark.

Operative part

The Court:

1. Annuls paragraph 2 of the operative part of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 December 2016 (Case R 863/2016-2);
EU agencies — Agency for the Cooperation of Energy Regulators (ACER) — Appeals procedure — Action before the Board of Appeal of ACER — Observance of the rights of the defence — Right of access to the file — Scope — Failure to communicate a document — Consequences — Burden of proof borne by the party seeking access

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a) and (b); European Parliament and Council Regulation No 713/2009, art. 19]

(see paras 41-44)
The finding of a likelihood of confusion is intended to protect the trade mark’s function of indicating origin, by making it possible to oppose the registration of a trade mark or to seek a declaration of invalidity thereof, if there is a risk that consumers may be misled as to the origin of the goods or services in question, on the false assumption that the goods and services covered by the signs at issue come from the same undertaking or from economically-linked undertakings.

The essential function of a trade mark is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling that person, without any possibility of confusion, to distinguish those goods or services from others which have a different origin. In order for the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish and maintain, it must offer a guarantee that all goods or services bearing that trade mark have been manufactured or supplied under the control of a single undertaking which is responsible for their quality.

In order for that guarantee of origin, which constitutes the essential function of a trade mark, to be ensured, the trade-mark proprietor must be protected against competitors wishing to take unfair advantage of the status and reputation of the trade mark by selling goods illegally bearing it.

(see paras 39-41)
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; Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 207/2009, Art. 75, first sentence)

(see paras 29, 30)
Judgment of the General Court (Eighth Chamber) of 13 December 2018 –

De Loecker v EEAS

(Case T‑537/17)

(Civil service — EEAS — Temporary agents — Psychological harassment — Request for assistance — Rejection of the request — Right to be heard — Liability)

1. Officials — Rights and obligations — Internal inquiry into alleged psychological harassment — Complainant’s right to be heard (Staff Regulations of Officials, Art. 12a) (see paras 64, 65)

2. Actions brought by officials — Actions for damages — Annulment of the illegal act in dispute — Whether appropriate reparation for non-material damage (Staff Regulations of Officials, Art. 91) (see paras 70-72)

Re:

Application on the basis of 270 TFEU and seeking, firstly, the annulment of the decision of the EEAS of 10 October 2016 rejecting the applicant’s request for assistance made under Articles 12a and 24 of the Staff Regulations of Officials of the European Union and, secondly, compensation for the harm allegedly suffered by the applicant.

Operative part

The Court:

1. Annuls the Decision of the European External Action Service (EEAS) of 10 October 2016 rejecting Mr Stéphane De Loecker request for assistance made under Articles 12a and 24 of the Staff Regulations of Officials of the European Union;

2. Dismisses the action as to the remainder;
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Overlap of the scope of the grounds set out in Articles 7(1)(b) and 7(1)(c) of Regulation No 207/2009

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

(see para. 65)
EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Meaning — Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Recital 10 and Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3))

(see para. 37)
Officials — Equal treatment — Discrimination — General implementing provisions adopted by the Commission — Handicap — Obligation to provide for reasonable working arrangements — Scope — Grant of part-time work for medical reasons — Treatment

(Charter of Fundamental Rights of the European Union, Art. 21; Staff Regulations of Officials, Arts 1d(1), first para. and 4; Council Directive 2000/78, Recital 20 and Art. 5)

(see paras 25-28, 33, 34, 46, 47)
Judgment of the General Court (Ninth Chamber) of 7 February 2019 –

Eglo Leuchten v EUIPO — Di-Ka (Lamp)

(Case T‑766/17)

(Community design — Invalidity proceedings — Registered Community design representing lighting apparatus — Ground for invalidity — Prior design — Individual character — Informed user — Degree of freedom of the designer — Article 6 of Regulation (EC) No 6/2002)

1. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — Global assessment of all the elements of the prior design (Council Regulation No 6/2002, Arts 6(1)(b) and 25(1)(b)) (see paras 20, 21, 47)

2. Community designs — Grounds for invalidity — Conflict with a prior design — Design not giving the informed user a different overall impression from that produced by the prior design — Informed user — Concept (Council Regulation No 6/2002, Arts 6(1)(b), 10(1) and 25(1)(b)) (see para. 22)

3. Community designs — Grounds for invalidity — Conflict with a prior design — Design not giving the informed user a different overall impression from that produced by the prior design — Criteria for assessment — Designer’s freedom (Council Regulation No 6/2002, Arts 6(2) and 25(1)(b)) (see paras 25, 26, 49)

4. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — Saturation of the state of the art — Relevance (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b)) (see para. 29)

5. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — General tendency in design matters — Irrelevant (Council Regulation No 6/2002, Arts 6(1)(b) and 25(1)(b)) (see para. 32)

6. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — Representation of lighting apparatus (Council Regulation No 6/2002, Arts 6(1)(b) and 25(1)(b)) (see paras 34, 35, 38-42, 44)

7. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — Determination of the overall impression having regard to the manner of use of the product (Council Regulation No 6/2002, Arts 6(1)(b) and 25(1)(b)) (see para. 43)

8. Community designs — Grounds for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the prior design — Determination of the overall impression in relation to one or more prior designs, taken individually (Council Regulation No 6/2002, Arts 6(1)(b) and 25(1)(b)) (see para. 57)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 26 September 2017 (Case R 738/2016-3), relating to invalidity proceedings between Eglo Leuchten and Di-Ka Vertriebs.

Operative part

The Court:

1. Dismisses the action;
The word mark DEVIN is not descriptive of a geographical origin as regards the average consumer in the neighbouring countries of Bulgaria, namely Greece and Romania, nor that of the other Member States of the EU, with the only sole of Bulgaria.

While the geographical name Devin is known to the relevant class of persons in Bulgaria, as regards the relevant class of persons in the other Member States of the European Union, the geographical name Devin is largely unknown to them or, at the very least, unknown as a designation of a geographical place.

The mere fact that the town of Devin has a detectable presence on the internet cannot suffice to establish that it would be known by a significant part of the relevant public of Greece and Romania. However, the existence of a ‘tourist profile on the internet’, in itself, does not suffice to establish the knowledge of a small town by the relevant public abroad.

Above all, the average consumer of mineral water and beverages in the European Union does not have a high degree of specialisation in geography or tourism. The Board of Appeal, by wrongly focusing on foreign tourists, in particular Greeks or Romanians, who visit Bulgaria and Devin, did not take into consideration the entire relevant public, consisting of the average consumer of the European Union, in particular from Greece and Romania, but wrongly limited itself to a very small or minimal fraction of the relevant public, namely foreign tourists visiting Bulgaria or Devin, which in any case is negligible and cannot be held to be sufficiently representative given by the relevant public in the light of case-law. Accordingly, the Board of Appeal applied a wrong test, which led it to an incorrect factual assessment of the perception of the word ‘devin’ by the relevant public.

Concerning the availability of the geographical name Devin, it should be considered that a descriptive use of the name ‘Devin’ is permitted in order to promote the town as a tourist destination. Regulation No 207/2009 on the European Union trade mark provides, in the same definition of the exclusive right conferred by a trade mark, safeguards to protect the interests of third parties. The town of Devin remains available to third parties not only for descriptive use, such as the promotion of tourism in that town, but also as a distinctive sign in cases of ‘due cause’ and where there is no likelihood of confusion excluding the application of Articles 8 and 9 of Regulation No 207/2009. The general interest in preserving the availability of a geographical name such as that of the spa town of Devin can thus be protected by allowing descriptive uses of such names and by means of safeguards limiting the exclusive right of the proprietor of the contested mark, without requiring cancellation of that mark.

(see paras 39, 41, 46-48, 79, 83, 89, 90, 93, 95)
EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Definition — Criteria for assessment

(Council Regulation No 207/2009, Art. 57(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3) and (4))

(see paras 43, 52-54, 64)
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 refusal to register — Scope

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

(see paras 47-49)
Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject matter of the dispute — Brief summary of the pleas in law on which the application is based — Application containing no precise indication of the legal basis of the action or argument developing the pleas raised — Inadmissibility — Development at the reply stage — Irrelevant

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 76(d))

(see paras 32, 35)
Judgment of the General Court (Fifth Chamber) of 24 January 2019 –

Brown Street Holdings v EUIPO — Enesan (FIGHT LIFE)

(Case T‑800/17)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark FIGHT LIFE — Earlier EU word mark FIGHT FOR LIFE — 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) — 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 16, 17, 19)

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 — Word marks FIGHT LIFE and FIGHT FOR LIFE (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 25, 31, 36)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 23)

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 between the goods or services in question — Complementary nature of the goods or services — Perception by the relevant public of the importance of a product or service for the use of another product or service (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 30)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 26 September 2017 (Case R 36/2017-2) relating to opposition proceedings between Brown Street Holdings and Enesan.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 September 2017 (Case R 36/2017-2) in so far as it rejected the opposition against the application for registration of the mark applied for in respect of the goods in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;