ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 27 September 2018 –

Demp v EUIPO (Combination of the colours yellow and grey)

(Case T‑595/17)

(EU trade mark — Application for an EU trade mark consisting of a combination of the colours yellow and grey — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark—Definition and acquisition of the EU trade mark—Signs of which a trade mark may consist—Colours or combinations of colours—Condition—Distinctive character—Account to be taken of the public interest in not unduly restricting the availability of colours (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20-24)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Trade mark made up of several elements—Possible for the competent authority to examine each of the elements making up the trade mark—Scope of protection of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 32)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Combination of the colours yellow and grey (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 60, 61, 64-67)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 10 July 2017 (Case R 1624/2016-5), concerning an application for registration, as an EU trade mark, of a colour sign consisting of a combination of the colours yellow and grey.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 25 September 2018 –

EM Research Organization v EUIPO — Christoph Fischer and Others (EM)

(Case T‑180/17)

(EU trade mark — Invalidity proceedings — EU word mark ‘EM’ — 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) — Evidence produced for the first time before the General Court)

1. 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. 20)

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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 29)

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—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 30, 31)

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 32, 81, 84)

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—Word mark EM (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 44, 55-59, 73, 75, 85, 87)

6. EU trade mark—Surrender, revocation and invalidity—Invalidity proceedings—Admissibility—Misuse of rights—Irrelevant (Council Regulation No 207/2009, Arts 37(1) and 56(1)(a)) (see paras 54, 67-69)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 2442/2015-1), relating to invalidity proceedings between Christoph Fischer, Ole Weinkath, Multikraft Produktions- und Handel and Phytodor, on one hand, and, on the other, EM Research Organization.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 28 June 2018 –

Amplexor Luxembourg v Commission

(Case T‑211/17)

(Public service contracts — Tendering procedure — Ranking of a tenderer in the cascade procedure — Processing of opinions with a view to their publication in the Supplement to the Official Journal of the European Union — Equal treatment of tenderers — Neutralisation of the advantage of the incumbent contractor — Misuse of powers)

1. 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—Unambiguous wording of the form of order sought by the applicant (Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 76(d) and (e)) (see para. 24)

2. European Union public contracts—Tender procedure—Obligation to comply with the principle of equal treatment of tenderers—Need to ensure equal opportunities and comply with the principle of transparency—Scope (European Parliament and Council Regulation No 966/2012, Art. 102(1)) (see paras 34-36)

3. European Union public contracts—Tender procedure—Obligation to comply with the principle of equal treatment of tenderers—Necessity to neutralise absolutely all the advantages of the contracting tenderer in place—None—Conditions for implementing deactivation measures (European Parliament and Council Regulation No 966/2012, Art. 102(1)) (see paras 37, 38, 41, 43, 45, 62, 63)

4. Actions for annulment—Pleas in law—Misuse of powers—Meaning (Art. 263 TFEU) (see para. 71)

Re:

Application based on Article 263 TFEU seeking annulment of the decision of the Publications Office of the European Union (PO) of 13 February 2017 to classify the applicant in second place in the context of call for tenders No 10651 for the conclusion of a framework contract in cascade for the processing of opinions with a view to their publication in the Supplement to the Official Journal of the European Union.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 25 October 2018 –

Aldo Supermarkets v EUIPO — Aldi Einkauf (ALDI)

(Case T‑359/17)

(EU trade mark — Opposition procedure — Application for EU word mark ALDI — Earlier national figurative mark ALDO — Relative ground for refusal — Conditions governing admissibility of the opposition — Rule 15 of Regulation (EC) No 2868/95 (now Article 2 of Delegated Regulation (EU) 2018/625) — Conditions governing representation of the earlier mark — Rule 19 of Regulation No 2868/95 (now Article 7 of Delegated Regulation 2018/625) — Lack of proof of genuine use of earlier mark — Article 42 of Regulation (EC) No 207/2009 (now Article 47 of Regulation (EU) 2017/1001))

1. EU trade mark—Observations of third parties and opposition—Facts, evidence and observations submitted in support of the opposition—Proof of the existence, validity and scope of the protection of an earlier registered trade mark—Purposive interpretation—Sufficient nature of a certificate of registration as evidence—Conditions (Commission Regulation No 2868/95, Art. 1, Rule 19(2)) (see paras 37, 38)

2. EU trade mark—Appeals procedure—Appeal against a decision of the Opposition Division of EUIPO—Examination by the Board of Appeal—Scope—Facts and evidence not produced in support of the opposition within the period prescribed for that purpose—Account taken—Discretion of the Board of Appeal—New evidence—Not included (Commission Regulation No 2868/95, Art. 1, Rule 19(2)(a)(ii) and (3)) (see paras 50, 69)

3. EU trade mark—Observations of third parties and opposition—Examination of the opposition—Failure to produce a translation of the registration certificate for an earlier mark—Obligation on the Office to inform the opposing party—None (Commission Regulation No 2868/95, Art. 1, Rule 19) (see para. 68)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 29 March 2017 (Case R 976/2016-4), concerning opposition proceedings between Aldo Supermarkets and Aldi Einkauf.

Operative part

The Court:

1. Dismisses the action;
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of privacy and integrity of the individual — Scope — Obligation to assess in conformity with EU legislation on the protection of personal data — Whether provisions of Regulation No 45/2001 are applicable in their entirety to requests to obtain access to documents including personal data

(European Parliament and Council Regulations No 45/2001, Art. 8, and No 1049/2001, Art. 4(1)(b))

(see paras 35, 36)
Judgment of the General Court (Second Chamber) of 20 November 2018 –

St Andrews Links v EUIPO (ST ANDREWS)

(Case T‑791/17)

(EU trade mark — Application for the EU word mark ST ANDREWS — Absolute ground for refusal — Descriptive character — Geographical origin — 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 — Assessment of the descriptive nature of a sign — Geographical names (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 21-26, 32, 33, 57)

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 — Word mark ST ANDREWS (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 38, 41, 44, 49, 58)

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. 40)

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 42, 52, 53)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 October 2017 (Case R 93/2017-4), relating to an application for registration of the word sign ST ANDREWS as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;.
EU trade mark — Appeals procedure — Action before the EU judicature — Interpretation of the list of goods for which a mark is registered — Question forming part of the factual and legal context before the Board of Appeal — Lawfulness

(Rules of Procedure of the General Court, Art. 188; Council Regulation No 207/2009, Art. 65(2))

(see para. 15)
Judgment of the General Court (Seventh Chamber) of 14 November 2018 –

Foodterapia v EUIPO — Sperlari (DIETOX)

(Case T‑486/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark DIETOX — Earlier EU figurative mark Dietor — Relative ground for refusal — 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 18-21, 90)

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 — Figurative marks DIETOX and Dietor (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 49, 61, 70, 86, 98)

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 of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 36, 37, 43, 45, 50)

4. EU trade mark — Proceedings before the EUIPO authorities — Directives of the Office — Scope — Limits (see para. 96)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 12 May 2017 (Case R 1611/2016-5), concerning opposition proceedings between Cloetta Italia and Foodterapia.

Operative part

The Court:

1. Dismisses the action;
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 — Coexistence of earlier marks — Recognition of a certain degree of distinctiveness of a national mark

(Council Regulation No 207/2009, Arts 7(1)(b) and (c) and 8(1)(b) and (2)(a)(ii))

(see paras 37, 42)
Judgment of the General Court (Third Chamber) of 27 November 2018 –

H2O Plus v EUIPO (H 2 O+)

(Case T‑824/17)

(EU trade mark — International registration designating the European Union — Figurative mark H 2 O+ — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Definition (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 16)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark H 2 O+ (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 21-31, 37)

3. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO's previous decision-making practice — Principle of legality (European Parliament and Council Regulation 2017/1001) (see paras 35, 36)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 6 October 2017 (Case R 499/2017-1), relating to the international registration designating the European Union in respect of the figurative mark H 2 O+.

Operative part

The Court:

1. Dismisses the action;
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 paras 24, 25)
4.

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Application to documents concerning a procedure for failure to fulfil obligations during the pre-litigation phase of the latter — General presumption that the exception applies to the right of access to all the documents on the administrative file — Whether permissible — Need for the applicability of specific legislation providing for a more restrictive framework than that of Regulation No 1049/2001 for the disclosure of the documents requested — Absence (European Parliament and Council Regulation No 1049/2001, Art. 4(2), third indent) (see paras 31, 32, 35, 39)
According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question.

First of all, it should be recalled that, when the goods in question are medicinal products or pharmaceutical products, the relevant public is composed of medical professionals, on the one hand, and patients, as the end consumers, on the other.

Next, in accordance with the case-law, first, medical professionals have a high level of attentiveness when prescribing medicines. Second, with regard to end consumers, it is clear from the case-law that, in cases where pharmaceutical products are sold without prescription, it must be assumed that those goods will be of interest to consumers who are deemed to be reasonably well informed and reasonably observant and circumspect, since those goods affect their state of health, and that these consumers are less likely to confuse different categories of goods. Furthermore, even where a medical prescription is mandatory, consumers are likely to have a high level of attentiveness upon prescription of the goods at issue, in light of the fact that those goods are pharmaceutical products. Thus, medicinal products, whether or not issued on prescription, can be regarded as receiving a heightened level of attentiveness by consumers who are reasonably well informed and reasonably observant and circumspect.

It follows from that case-law that those considerations are also applicable if the pharmaceutical products in question are intended to treat minor complaints and ailments.

The same is true of dietetic products in general and of dietary supplements, which, strictly speaking, are not medicinal products, but nevertheless constitute goods in the field of health, since, in general, they are intended to improve health, and may be regarded as goods to which consumers who are reasonably well informed and reasonably observant and circumspect pay a high level of attention.

(see paras 21, 25-28)
4.

EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Financing covering only expenses actually incurred — Demonstration that the costs have actually been incurred — Staff costs — Production of the time records — Unreliable owing to a conflict of interests between the beneficiary and his contracting partners — Production of documents requiring considerable investment on the part of the Commission in order to determine the time actually worked — Disregard of the obligation for the beneficiary to work together with the Commission in good faith (European Parliament and Council Regulation No 1906/2006, Art. 31(3)(a) and (c); Commission Regulation No 2342/2002, Art. 172a(1)) (see paras 67, 71, 76, 78, 79)
Judgment of the General Court (Second Chamber) of 26 March 2019 –

Parfümerie Akzente v EUIPO (GlamHair)

(Case T‑787/17)

(EU trade mark — Application for EU word mark GlamHair — Absolute ground for refusal — Lack of distinctive character — Descriptive 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))

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 — Concept — Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 13, 14, 27)

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 — Assessment of the descriptive nature of a sign — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 15, 32)

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 GlamHair (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17-25, 29, 45, 42-46)

4. EU trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 36)

5. 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 37, 52)

6. EU trade mark — Definition and acquisition of the EU trade mark — Refusal of registration based on one of the absolute grounds for refusal set out in Article 7(1) of Regulation No 207/2009 — Whether sufficient (Council Regulation No 207/2009, Art. 7(1)) (see para. 47)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 25 September 2017 (Case R 82/2017-2), relating to an application for registration of the word sign GlamHair 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 — 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

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and Art. 94, first sentence)

see paras 38-44
Judgment of the General Court (Seventh Chamber) of 16 May 2019 — Nerantzaki v Commission

(Case T‑813/17)

(Civil service — Officials — Recruitment — Notice of competition — Open competition EPSO/AD/331/16 — Conditions for admission — Decision of the selection board not to admit the applicant to the next stage of the competition — Error of law)

1. Actions brought by officials — Act adversely affecting an official — Decision adopted after reconsideration of a previous decision — Decision adopted by a competition selection board after reviewing the file of a candidate not admitted to the competition (Staff Regulations of Officials, Arts 90(2) and 91(1)) (see para. 25)

2. Officials — Recruitment — Competitions — Competition based on qualifications and tests — Conditions for admission — Fixing by the competition notice — Selection board’s assessment of candidates’ professional experience — Assessment solely in the light of the description of the duties relating to the position to be filled departing from the requirements of the competition notice — Not permissible (Staff Regulations of Officials, Arts 28 and 29 and Annex III) (see paras 37, 40-45)

Re

Application under Article 270 TFEU for annulment of, first, the decision of the selection board of 15 May 2017 not to admit the applicant to the next stage of Open Competition EPSO/AD/331/16 and, second, the decision of the appointing authority of 14 September 2017 rejecting the applicant’s complaint against the decision of the competition selection board not to admit the applicant to the next stage of that competition.

Operative part

The Court:

1. Annuls the decision of the selection board of 15 May 2017 not to admit Ms Eleni Nerantzaki to the next stage of Open Competition EPSO/AD/331/16;