ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Single Judge) of 13 October 2021 –

Schneider v EUIPO – Frutaria Comercial de Frutas y Hortalizas (Frutaria)

(Case T‑12/20)

(EU trade mark – Revocation proceedings – EU figurative trade mark Frutaria – Genuine use of the trade mark – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) – Proof of genuine use – Nature of use)

1. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Concept – Criteria for assessment – Company name, commercial name or trade name (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 41, 42)

2. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Use of the mark in a form differing by elements not altering the distinctive character of the mark – Subject matter and scope of Article 15(1)(a) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 15(1)(a)) (see paras 58, 59)

3. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Use of the mark in a form differing by elements not altering the distinctive character of the mark – Word mark Frutaria (Council Regulation No 207/2009, Arts 15(1)(a) and 51(1)(a)) (see paras 63-69)

4. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the mark – Partial use – Effect – Concept of ‘part of goods or services’ concerned by registration (Council Regulation No 207/2009, Art. 51(2)) (see paras 77-80)

5. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the mark – Genuine use – Concept – Criteria for assessment (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 91, 92)

6. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the mark – Genuine use – Criteria for assessment – Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 51(1)(a)) (see para. 94)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 8 October 2019 (Case R 284/2019-1), relating to revocation proceedings between M. Schneider and Frutaria Comercial de Frutas y Hortalizas.

Operative part

The Court:

1. Dismisses the action;
6.

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Weighing elements of similarity or difference between the signs – Taking into account of the intrinsic characteristics of the signs or the conditions in which the goods or services are marketed (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 91, 93, 94)
Judgment of the General Court (Seventh Chamber) of 26 January 2022 –

MN v EUROPOL

(Case T‑586/20) ( 1 )

(Civil service – Members of the temporary staff – Non-renewal of a fixed-term contract for an indefinite period – Manifest error of assessment)

Officials – Europol staff – Recruitment – Internal rules that make the renewal of a contract for an indefinite period contingent on proof of outstanding performance – Consideration of all appraisal reports for the official concerned – Whether permissible

(Europol Staff Regulations, Art. 6; Conditions of Employment of Other Servants, Art. 8)

(see paras 34-43)

Operative part

The Court:

1. Dismisses the action;

2. Orders MN to pay the costs.

( 1 ) OJ C 433, 14.12.2020.
EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word mark STONES

(European Parliament and Council Regulation 2017/1001, Arts 18(1) and 58(1)(a); Commission Regulation No 2018/625, Arts 10(3) and 19(1))

(see paras 28, 63-68)
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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 19, 22)
Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Brief statement of the pleas in law on which the application is based – Application not sufficiently clear and precise

(Statute of the Court of Justice, Arts 21 and 53, first para.; Rules of Procedure of the General Court, Art. 76, first para., subpara. (d))

(see paras 56-59, 97-99)
Actions brought by officials – Prior administrative complaint – Time limits – Starting point of the limitation period – Measure neither published nor notified to the applicant – Precise knowledge of the content and reasons – Duty to request the whole text of the decision within a reasonable time once its existence is known – Impossible for the applicant to be aware of its existence – Consequences

(Staff Regulations of Officials, Arts 25, third para. and 90(2); Conditions of Employment of Other Servants, Art. 46)

(see paras 24-32)
Actions for damages – Limitation period – Starting point of the limitation period – Damage of a continuing nature – Date on which the harmful effects of the measure with regard to the person concerned became apparent – Date to be taken into consideration

(Art. 340, second para., TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.)

(see paras 32-37, 48)
81

On one hand, in the letter of 6 March 2020 (see paragraph 38 above), the Council merely stated that the certificates issued by the PGO established that the applicant continued to be the subject of Cases 113 and 521 for misappropriation of public funds or assets and that they had been assigned to the National Anti-Corruption Bureau of Ukraine on 19 and 21 November 2019 respectively. On the other hand, with regard to respect for the rights of defence and the right to effective judicial protection of the applicant, the Council stated that compliance with those rights was evidenced by the court decisions referred to in paragraph 80 above. As regards, in particular, the decision of the investigating judge of 19 August 2019, given in the context of Case 113, it indicated that notices of suspicion had been served on the applicant on 22 December 2014 and 19 August 2016, that the prosecution had proved the existence of reasonable suspicion, that, on 10 June 2019, the applicant’s name had been placed on an international list of wanted persons, that it had been proved that he was hiding from the authorities conducting the preliminary investigation, and that there was sufficient reason to believe that he would continue to do so.
25

By contrast, the earlier design is of no relevance to the examination of the first three stages of the assessment referred to in paragraph 21 above. The individual character of the contested design may be destroyed by an earlier design intended to be applied to products belonging to a completely different sector to that of the products concerned by the contested design. Thus, it follows from the wording of the first sentence of Article 7(1) of Regulation No 6/2002 that the effect of that provision is that the question of whether there is disclosure of a design to the public is dependent only upon how that disclosure is in fact achieved and not upon the product in which that design is intended to be incorporated or to which it is intended to be applied (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 99). The Court has pointed out that there is nothing in that provision to permit the conclusion that it is necessary for an informed user of the product in which the contested design is incorporated or to which it is applied to know the earlier design when it is incorporated in a product in an industry sector that differs from the relevant sector for the contested design, or is applied to such a product (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 131). Therefore, since the earlier design may fall within a completely different sector, characterised by a different informed user and freedom of the designer, it is irrelevant for the purposes of determining the sector concerned by the contested design, the informed user of that design and the freedom of its designer.
53

In view of the concerns for human health identified by EFSA as regards exposure to chlorpyrifos, the SCOPAFF, at its meeting on 26 and 27 September 2019, agreed that the actions necessary to establish the MRL for that substance should be treated with high priority and, at its meeting on 17 and 18 February 2020, delivered an opinion in favour of the draft regulation submitted by the Commission to that end. Accordingly, if, as submitted by the applicant, the Commission had been required, following the publication of the Josep Carreras study on 21 May 2020, to refer the matter to EFSA so that that authority could rule on the study’s relevance, it would have been necessary to interrupt the procedure for the adoption of the contested regulation, which would have significantly delayed its entry into force, thus extending the period during which foodstuffs in or on which chlorpyrifos residues could be found could be legally imported into the European Union, in particular on the bananas produced by the applicant for which the MRL was set at 4 mg/kg. Thus, in such circumstances, the Commission was entitled to consider that a referral to EFSA to assess the relevance of that study would have involved an extension of the procedure to remove the MRLs for chlorpyrifos, contrary to the objective pursued by Regulation No 396/2005 to ensure a high level of protection of human health and of consumers (see, to that effect and by analogy, judgments of 17 March 2021, FMC v Commission, T‑719/17, EU:T:2021:143, paragraph 188, and of 6 October 2021, Sipcam Oxon v Commission, T‑518/19, not published, EU:T:2021:662, paragraph 100).
Judgment of the General Court (Ninth Chamber) of 21 December 2021 –

Fidia farmaceutici v EUIPO – Stelis Biopharma (HYALOSTEL ONE)

(Case T‑194/21)

(EU trade mark – Opposition proceedings – International figurative registration designating the European Union – Figurative mark HYALOSTEL ONE – Earlier EU word mark HYALISTIL and earlier figurative mark HyalOne – Earlier international word mark HYALO – Relative ground for refusal – Article 8(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons)

1. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU – Recourse by the Board of Appeal to implicit reasoning – Whether permissible – Conditions (Art. 296 TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence) (see para. 22)

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 – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 32)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 27 January 2021 (Case R 831/2020-5), relating to opposition proceedings between Fidia Farmaceutici and Stelis Biopharma.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 January 2021 (Case R 831/2020-5);
Judgment of the General Court (Ninth Chamber) of 26 January 2022 –

Meta Cluster v EUIPO (Clustermedizin)

(Case T‑233/21)

(EU trade mark – Application for EU word mark Clustermedizin – Absolute ground for refusal – Descriptive character – Lack of distinctive character – 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 – Assessment of the descriptive nature of a sign – Criteria (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 14, 16-18, 42)

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 (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see para. 15)

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 – Mark designating a particular therapeutic method (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see para. 36)

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 – Word mark Clustermedizin (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 37-40, 45)

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 – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies (European Parliament and Council Regulation No 2017/1001) (see para. 43)

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 (European Parliament and Council Regulation No 2017/1001) (see para. 44)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 22 February 2021 (Case R 2127/2020-4), relating to an application for registration of the word sign Clustermedizin as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 12 January 2022 –

Neolith Distribution v EUIPO (Representation of an ornamental pattern)

(Case T‑259/21)

(EU trade mark – Application for an EU pattern mark – Representation of an ornamental pattern – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) 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 – Not included (Art. 263 TFEU; European Parliament and Council Regulation 2017/1001, Art. 72(6)) (see para. 10)

2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Concept (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 16, 17)

3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Pattern marks applied to the surface of the product – Distinctive character – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b); Commission Regulation 2018/626, Art. 3(3)(e)) (see paras 18, 28, 31, 32, 34)

4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Recognition of the distinctive character of the sign not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 19)

5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Pattern mark representing an ornamental pattern (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 20, 21, 29, 35, 36, 38)

6. EU trade mark – Decisions of EUIPO – 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 (European Parliament and Council Regulation No 2017/1001) (see paras 42-44)

7. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU (Art. 296 TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence) (see paras 50, 51)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 March 2021 (Case R 2155/2020-4), regarding an application for registration of a pattern sign representing an ornamental pattern as an EU trade mark.

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 – Concept – Criteria for assessment – Requirement of solid and objective evidence

(European Parliament and Council Regulation 2017/1001, Arts 18(1) and 47(2); Commission Regulation 2018/625, Art. 10(3) and (4))

(see paras 28-30, 34-36, 74)
Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Summary of the pleas in law on which the application is based – Pleas in law not set out in the application – General reference to other documents – Inadmissibility

(Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 21)
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 – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies (European Parliament and Council Regulation 2017/1001) (see para. 43)
EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Interpretation taking account of the rationale of Article 47(2) and (3) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Recital 24 and Art. 47(2) and (3))

(see para. 19)
2.

Officials – Representation – Staff Committee – President – Election – Proper conduct – Existence of doubts as to the proper conduct of the ballot – Right of the institution concerned to intervene – Condition – Need to ensure that the principle of legal certainty is upheld (Staff Regulations of Officials, Art. 9(2)) (see paras 53, 54, 71-75, 77, 78, 80, 84, 85, 102)
Officials – Reports procedure – Appraisal report – Drawing up – Obligation of impartiality – Scope – Calling into question of opinions expressed by appraisers – Burden of proof

(Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations of Officials, Art. 43)

(see paragraphs 48, 51, 54)
Keywords

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Procedure ° Revision of a judgment ° Conditions for admissibility of an application for revision ° New fact ° Fact known before delivery of the contested judgment ° Inadmissibility

(Statute of the Court of Justice of the EEC, Arts 41 and 46)

Summary

It is clear from the first paragraph of Article 41 of the Statute of the Court of Justice (EEC), made applicable to the procedure before the Court of First Instance by the first paragraph of Article 46 of that Statute, that revision is not an appeal procedure but an exceptional review procedure that allows an applicant to call in question the authority of res judicata attaching to a judgment bringing the proceedings to an end on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of matters of fact which existed prior to delivery of the judgment and which were previously unknown to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to a different determination of the proceedings.

An application for revision in support of which the applicant puts forward a fact known to it before the judgment was pronounced is therefore manifestly inadmissible.
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Competition - Administrative procedure - Bringing an infringement to an end - Adoption of interim measures - Powers of the Commission - Application for interim relief for the purpose of obtaining an order requiring the Commission to reconsider a request for interim measures - Dismissed

( EEC Treaty, Arts 173, 176 and 186; Council Regulation No 17, Art . 3(1 ) )

Summary

It is for the Commission, within the bounds of the supervisory task conferred upon it in competition matters by the Treaty and Regulation No 17, to decide by virtue of Article 3(1 ) of Regulation No 17 whether there are grounds for adopting interim measures when a request is referred to it under that provision .

It would not be consistent with the principles governing the distribution of powers between the different Community institutions, as intended by the authors of the Treaty, for the Court of First Instance to be able to require the Commission to reconsider an application for interim measures, seeking an interim decision prohibiting the continuation of an alleged infringement, which has been submitted to it .

Article 173, read in conjunction with Article 176, of the EEC Treaty precludes the Court of First Instance from laying down the framework within which the Commission is to reconsider a request for interim measures without first having declared void the act embodying the refusal to adopt the relevant interim measures .
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1. Procedure ° Costs ° Taxation ° Recoverable costs ° Concept ° Interest on sums paid to lawyers prior to the order on taxation ° Excluded

(Rules of Procedure of the Court of First Instance, Art. 91(b))

2. Procedure ° Costs ° Taxation ° Factors to be taken into consideration

(Rules of Procedure of the Court of First Instance, Art. 91(b))

3. Procedure ° Costs ° Taxation ° Recoverable costs ° Concept ° Involvement of more than one lawyer

(Rules of Procedure of the Court of First Instance, Art. 91(b))

Summary

1. The parties' entitlement to reimbursement of costs has its legal basis in the order fixing the amount thereof. It is therefore not open to a party to claim, as recoverable costs, interest on the sums paid by it to its lawyers prior to that order.

2. The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but may determine the amount of those fees which may be recovered from the party ordered to pay the costs. It follows that the Court is not obliged to take account of any national scales of lawyers' fees or any agreement concluded in that regard.

Since Community law does not contain any provisions laying down a scale of fees, the Court must freely consider all the facts of the case, taking into account the purpose and nature of the proceedings and their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the dispute for the lawyer involved and the financial interest which the parties had in the proceedings.

3. In principle, only the remuneration of a single lawyer may be regarded as falling within the concept of "expenses necessarily incurred" within the meaning of Article 91(b) of the Rules of Procedure of the Court of First Instance.