ddrg/super_eurlex huggingface dataset:
40

As regards, more particularly, the shape in question, it must be stated that, on examination of all the documents put before the Court by the parties, it appears that the combination of the elements has a truly individual character and cannot be regarded as altogether common to all the products in question. It should be pointed out that the container which it is sought to register possesses certain features which distinguish it from containers for washing and cleaning products commonly used on the market. It must be observed in that regard that, as the applicant argues, the container in question is particularly angular, and that the angles, the edges and the surfaces make it resemble a crystal. Moreover, the container gives the impression of being a single object, as the stopper of the container forms an integral part of the overall image. Lastly, the container is particularly flat. That combination thus confers on the bottle in question a particular and unusual appearance which is likely to attract the attention of the relevant public and enable that public, once familiar with the shape of the packaging of the goods in question, to distinguish the goods covered by the registration application from those having a different commercial origin (see, to that effect, Case T-128/01 Daimler Chrysler v OHIM (Grille) [2003] ECR II-701, paragraphs 46 and 48; and Shape of a bottle, paragraph 41).
Judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 – Kronoply and Kronotex v Commission

(Case T-388/02)

State aid – Commission decision not to raise objections – Action for annulment – Time-limit for bringing proceedings – Publication of a summary notice – No significant effect on the competitive position – Inadmissibility – Status as party concerned – Admissibility – Failure to initiate the formal investigation procedure – No serious difficulties

1. Actions for annulment – Time-limits – Point from which time starts to run – Date of publication – Day on which a measure came to the knowledge of the applicant – Subsidiary matter – Measures which, in accordance with standard practice of the institution, are published in the Official Journal (Art. 230, fifth para., EC) (see paras 29-32)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid incompatible with the common market without opening the formal investigation procedure – Action by a competitor undertaking not showing that its market position substantially affected – Inadmissibility (Arts 88(2) and (3) EC and 230, fourth para., EC) (see paras 62, 64)

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid incompatible with the common market without opening the formal investigation procedure – Action by interested parties for the purposes of Article 88(2) EC – Admissibility – Conditions (Arts 88(2) and (3) EC and 230, fourth para., EC) (see paras 60, 70-72)

4. State aid – Examination by the Commission – Preliminary review and main review – Compatibility of aid with the common market – Decision not to open the formal investigation procedure – Lawfulness – Condition (Art. 88(2) and (3) EC; Council Regulation No 659/1999, Art. 4(4)) (see paras 92-93)

5. State aid – Not allowed – Exceptions – Discretion of the Commission – Possibility of adopting guidelines (Arts 3(g) EC and 87(3) EC) (see paras 143-144)

Re:

ANNULMENT of the Commission’s decision of 19 June 2002 to raise no objections to aid granted by the German authorities to Zellstoff Stendal for the construction of a production plant for pulp.

Operative part

The Court:

1. Dismisses the action;

2. Orders Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to bear their own costs and to pay those incurred by the Commission of the European Communities, Zellstoff Stendal GmbH, and the Land Sachsen-Anhalt.
Keywords

Summary



Keywords

1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade mark composed of elements also used as advertising slogans – Condition for registration – Ability to be perceived as an indication of the commercial origin of the goods or services covered – Examination in the context of Article 7(1)(b) of Regulation No 40/94 – Article 7(1)(c) – Different criteria of application

(Council Regulation No 40/94, Art. 7(1)(b) and (c))

2. 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 – Word sign ‘EUROPREMIUM’

(Council Regulation No 40/94, Art. 7(1)(c))

Summary

1. Registration of a Community trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use on the sole condition that the mark may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin.

That ability of such a sign to be perceived as an indication of the commercial origin of the goods and services must be assessed in the context of Article 7(1)(b) of Regulation No 40/94.

By contrast, to come within the scope of Article 7(1)(c) of Regulation No 40/94, a trade mark must serve to designate in a specific, precise and objective manner the essential characteristics of the goods and services at issue.

(see paras 38-39, 41)

2. It has not been shown that the word sign EUROPREMIUM, for which registration as a Community trade mark is sought, inter alia, for goods intended for packaging, storage or transport, advertising, management or business assistance services or transport and storage services in Classes 16, 20, 35 and 39 of the Nice Agreement and which could be understood by the average English-speaking consumer as a reference to high-quality European goods and services, may serve directly to designate, within the meaning of Article 7(1)(c) of Regulation No 40/94, those goods and services.

First, the sign at issue is not composed of elements descriptive of the goods and services referred to since the prefix ‘euro’ does not designate them either directly or by reference to one of their essential characteristics and the word ‘premium’ is merely a laudatory term evoking a characteristic that the applicant seeks to attribute to its own goods, yet without informing consumers of the specific and objective characteristics of the goods or services offered.

Secondly, it is not established that that the term ‘europremium’, taken as a whole, is or could be a generic or usual name to identify or distinguish the goods or services concerned.

(see paras 28, 34, 36, 43, 45-46)
Keywords

Summary



Keywords

1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Descriptive character and lack of distinctive character of a sign – Relationships between relevant provisions

(Council Regulation No 40/94, Art. 7(1)(b) and (c))

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods – Word sign CELLTECH

(Council Regulation No 40/94, Art. 7(1)(b) and (c))

Summary

1. A word mark which is descriptive of characteristics of goods or services for the purposes of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark is, on that account, necessarily devoid of any distinctive character with regard to the same goods or services for the purposes of Article 7(1)(b) of the regulation

In order to establish that a trade mark which is not prevented from registration on account of the ground of refusal laid down in Article 7(1)(c) of the regulation is none the less devoid of any distinctive character within the meaning of Article 7(1)(b) thereof, the Office for Harmonisation in the Internal Market (Trade Marks and Designs) must set out the reasons why it considers that that trade mark is devoid of distinctive character.

(see paras 23-24)

2. The word sign CELLTECH, for which registration as a Community trade mark is sought in respect of ‘pharmaceutical, veterinary and sanitary preparations, compounds and substances’, ‘Surgical, medical, dental and veterinary apparatus and instruments’ and ‘Research and development services; consultancy services; all relating to the biological, medical and chemical sciences’ in Classes 5, 10 and 42 of the Nice Agreement, respectively, is not devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, in the view of the average English-speaking consumer and of the specialists as a whole from the medical field regardless of their mother tongue, since, firstly, it has not been established that the trade mark claimed was prevented from registration on account of the ground for refusal set out in Article 7(1)(c) of Regulation No 40/94, in that it is descriptive of the goods and services in respect of which registration was sought, and, secondly, no other grounds were set out as to why that mark was none the less devoid of any distinctive character for the purposes of Article 7(1)(b) in so far as, taken as a whole, it would not allow the public targeted to distinguish the goods and services in question from those having a different commercial origin.

(see paras 31, 41, 44-45)
Keywords

Summary



Keywords

1. 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

(Council Regulation No 40/94, Art. 8(1)(b))

2. 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

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

1. In the global assessment of the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, the respective weight to be given to the visual, phonetic or conceptual aspects may vary on the basis of the objective circumstances in which the marks may be present on the market. It should be noted in that respect that the ‘usual’ circumstances in which the goods covered by the marks in question are marketed must be taken as a benchmark, and not the particular circumstances in which the goods covered by the earlier mark are marketed. The examination of the likelihood of confusion which the authorities of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are called on to carry out is a prospective examination. Since the particular circumstances in which the goods covered by the marks are marketed may vary in time and depending on the wishes of the proprietors of the trade marks, the prospective analysis of the likelihood of confusion between two marks cannot be dependent on the commercial intentions, whether carried out or not, and naturally subjective, of the trade mark proprietors.

(see paras 103-107)

2. There is a likelihood of confusion on the part of the average French consumer within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark between the figurative sign containing the verbal element ‘quantum’ in respect of which registration as a Community trade mark is sought for ‘watches, clocks, movements and parts thereof, watch/clock glasses, watch/clock casings, watch straps, watch chains/bracelets, watch bands, cases for watches and for clocks’ in Class 14 of the Nice Agreement, and the figurative mark Quantième, registered earlier in France for ‘clocks and watchmaking goods; jewellery’ and ‘leather goods’ in Classes 14 and 18 of the Nice Agreement respectively, given the identity and similarity of the goods covered by the respective marks, combined with the visual and phonetic similarity of the signs they consist of, without those similarities being offset to a large extent by the conceptual difference between those signs. Since likelihood of confusion is the specific prerequisite for protection of the earlier mark, that protection applies irrespective of whether the earlier mark has only weak distinctiveness.

(see para. 110)
Keywords

Summary



Keywords

Fisheries – Conservation of the resources of the sea – System of fishing quotas – Distribution between Member States of the volume of available catches – Principle of relative stability – Taking into account of the particular needs of the regions and of fishing-dependent communities – Subjective rights not created for individuals

(Art. 288, second para., EC; 1985 Act of Accession, Art. 161(1)(f); Council Regulation No 3760/92, Art. 8(4)(i) and (ii))

Summary

The principle of relative stability set out in Article 8(4)(i) and (ii) of Regulation No 3760/92 establishing a Community system for fisheries and aquaculture, which provides that the Council is to distribute the fishing opportunities between Member States in such a way as to assure each Member State relative stability of fishing activities for each of the stocks concerned, reflects a criterion for the distribution between Member States of Community fishing opportunities in the form of quotas allocated to the Member States and does not therefore confer on fishermen any guarantee that they can catch a fixed quantity of fish, since the requirement of relative stability must be understood as meaning merely maintenance of a right to a fixed percentage for each Member State in that distribution.

In the same way, the sole object of Article 161(1)(f) of the Act of Accession of Spain and Portugal is to apportion the quota for anchovy in a defined area; it makes no reference to the situation of anchovy fishermen in the two countries which may fish in that area nor, a fortiori, to any obligation on the Council’s part to take account of the particular situation of those fishermen when it authorises a transfer of the quota for anchovy from a contiguous area to that area.

Consequently, the principle of relative stability and Article 161(1)(f) of the Act of Accession identify with sufficient precision the States as holders of the fishing rights and define the content of those rights, showing that those rules of law are not intended to confer rights on individuals.

In that regard, it is of little import that, in accordance with the 13th recital in the preamble to Regulation No 3760/92, the relative stability provided for by that regulation must take account of the particular needs of regions where local populations are especially dependent on fisheries and related activities and that the Council, when allocating fishing opportunities among the Member States, is required to reconcile, for each of the stocks concerned, the interests represented by each Member State with particular regard to its traditional fishing activities and, where relevant, its local populations and industries dependent on fishing. Traditional fishing rights can enure only to the benefit of States, to the exclusion of individual vessel owners, so that the latter cannot rely on an individual right the infringement of which entitles them to compensation under the second paragraph of Article 288 EC.

(see paras 87, 89, 91, 93-96)
Keywords

Summary



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

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

There is no likelihood of confusion on the part of the average consumer between, on the one hand, the figurative mark including the word element ‘SELEZIONE ORO Barilla’, in respect of which registration as a Community trade mark is sought for ‘Pasta, flour and preparations made from cereals, bread, pastry and confectionery; yeast, baking-powder; sauces (condiments)’ in Class 30 of the Nice Agreement and, on the other, the word mark ORO registered previously in Italy as an international trade mark having effect in, inter alia, Austria, Germany, Spain, France and the Benelux, for ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, biscuits, tarts, pastry, sweets, confectionery, ices, honey, treacle; yeast, baking-powder; salt, mustard; pepper, vinegar, sauces, spices; ice’ in Class 30, and the word mark ORO SAIWA, registered previously in Italy for ‘Milk biscuits, biscuits, bread, pastry and confectionery’ also in Class 30, despite the goods being materially identical. There are important visual and phonetic differences in the way consumers perceive the conflicting marks and the mere presence of the word ‘oro’ is not capable of giving rise to similarity between them. Furthermore, the existence of a weak degree of conceptual similarity between the marks is not such as to offset their visual and phonetic differences. Finally, the word ‘oro’, which serves primarily to define a superior range of goods as distinct from a standard range, does not have an independent distinctive function in the trade mark applied for, but must be understood as being appended to the descriptive term ‘selezione’ to indicate to consumers that a top-of-the-range product is at issue. Accordingly, the distinctiveness of the sign is due to the word ‘Barilla’.

(see paras 30, 32, 39-41)
Keywords

Summary



Keywords

1. 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 – Earlier mark consisting of a national mark – Refusal of registration where there is an absolute ground for refusal even if it obtains in only part of the Community

(Council Regulation No 40/94, Arts 7(2) and 8)

2. 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 – Word mark SELENIUM-ACE and figurative mark ‘Selenium Spezial A-C-E’

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

1. Even though Article 8 of Regulation No 40/94 on the Community trade mark, concerning the relative grounds for refusal, does not contain a provision similar to Article 7(2) concerning the absolute grounds for refusal to the effect that an application to register a trade mark may be refused where the absolute ground for refusal obtains in only part of the Community, the same approach should be applied in the present case where there are opposition proceedings based on an earlier mark registered in a Member State. It follows that registration must also be refused even where the relative ground for refusal obtains in only part of the Community.

(see para. 29)

2. For average consumers in Germany there is a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, between the word mark SELENIUM-ACE, for which registration as a Community trade mark is sought in respect of ‘cosmetics; face creams; soaps; anti-ageing creams and lotions’ and ‘nutritional supplements; vitamins and minerals’ falling within Classes 3 and 5 respectively of the Nice Agreement, and the figurative mark comprising the word element ‘Selenium Spezial A-C-E’, previously registered in Germany for ‘non-medical and non-pharmaceutical preparations on the basis of starch, calciumsalts, magnesium stearate and yeast, or combinations thereof as nutritional additives’ in both Class 5 and Class 30 of that Agreement, since the goods claimed in the trade mark application are partly identical to the goods covered by the earlier trade mark and partly similar, the signs in question give an overall impression of similarity at a visual, aural and conceptual level and, given the identity and similarity of the goods, the differences between the signs in question are attenuated in a global assessment of the likelihood of confusion.

(see paras 31, 44, 48)
Keywords

Subject of the case

Operative part



Keywords

Non-contractual liability – Conditions – Illegality – Damage – Causal link (Art. 288, second para., EC) (see paras 37-38, 141-142)

2. Non-contractual liability – Conditions – Sufficiently serious breach of a rule conferring rights on individuals – Hearing (Art. 288, second para., EC) (see paras 39-44)

3. Non-contractual liability – Compensation for damage caused by servants of the Community in the performance of their duties (Art. 288, second para., EC; European Parliament and Council Regulations No 1073/1999, Art. 8(3), and No 45/2001, Arts 2(a) and (b), 3, 4(1) and (5)) (see paras 193-199)

4. Non-contractual liability – Conditions – Sufficiently serious breach of a rule conferring rights on individuals (Art. 288, second para., EC; European Parliament and Council Regulations No 1073/1999, Art. 8(3), and No 45/2001, Arts 2, 3, 4(1) and 5(a) and (e)) (see paras 200-216, 230-233)

5. European Anti-Fraud Office (OLAF) – Regulation No 1073/1999 concerning investigations conducted by OLAF (European Parliament and Council Regulation No 1073/1999) (see paras 236-246, 250-251)

6. Non-contractual liability – Conditions – Damage – Causal link (Art. 288, second para., EC) (see paras 304, 320, 330, 333)

Subject of the case

Re:

ACTION for damages, pursuant to the second paragraph of Article 288 EC, for the loss suffered by the applicant following publication of information concerning an inquiry carried out concerning her by the European Anti-Fraud Office (OLAF) and OLAF’s refusal to grant her access to the inquiry file and to supply her with a copy of its final report.

Operative part

Operative part

The Court:

1. Orders the Commission to pay the applicant compensation of EUR 3 000;

2. Dismisses the remainder of the action;

3. Orders the applicant to bear three quarters of her own costs and three quarters of the costs incurred by the Commission, which is to bear a quarter of its own costs and pay a quarter of the costs incurred by the applicant.