ddrg/super_eurlex huggingface dataset:
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

(Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third para.)

(see para. 39)
Judicial proceedings–Application initiating proceedings–Formal requirements–Brief summary of the pleas in law on which the application is based–General reference to other documents not annexed to the application–Inadmissibility

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see paras 21, 22, 25)
Judgment of the General Court (Fourth Chamber) of 28 November 2017 — Polskie Zdroje v EUIPO (perlage)

(Case T‑239/16)

(European Union trade mark — Application for EU word mark perlage — Absolute ground for refusal — Descriptive — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — No distinctive character acquired by use — Article 7(3) of Regulation (EC) No 207/2009 (now Article 7(3) 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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 16)

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—Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17-18)

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—Assessment of the descriptive nature of a sign—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 19, 28)

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 perlage (Council Regulation No 207/2009, Art. 7(1)(c) and (2)) (see paras 21-25, 29-32)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Exception—Distinctive character acquired through use—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b) — (d) and (3)) (see paras 36, 38-40)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Exception—Distinctive character acquired through use—Mark devoid of distinctive character in part of the Union (Council Regulation No 207/2009, Art. 7(1)(b) — (d) and (3)) (see para 37)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 16 March 2016 (Case R 1129/2015-5) concerning an application for registration of word sign perlage as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Officials—Members of the contract staff—Early termination of a fixed-term contract—Administration’s discretion—Administration’s duty to have regard for the interests of officials—Taking into consideration of the interests of the staff member concerned and those of the service—Justification based on breakdown in the relationship of trust—Judicial review—Limits

(Conditions of Employment of Other Servants, Art. 47)

(see paras 80, 82, 90)
Judgment of the General Court (Ninth Chamber) of 14 December 2017 — N & C Franchise v EUIPO — Eschenbach Optik (OJO sunglasses)

(Case T‑792/16)

(EU trade mark — Opposition proceedings — Application for EU figurative mark OJO sunglasses — Earlier international word mark oio — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — 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 17-19, 57)

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. 22)

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—Likelihood of confusion with the earlier mark—Figurative mark OJO sunglasses and word mark oio (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 26, 34, 36, 41-43, 47, 56, 62, 63, 67-71)

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—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 29)

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—Similarity of the marks concerned—Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 30)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 9 September 2016 (Case R 32/2016-5), relating to opposition proceedings between Eschenbach Optik and N & C Franchise.

Operative part

The Court:

1. Dismisses the action;
Community designs–Appeals procedure–Action before the EU judicature–Jurisdiction of the General Court–Re-evaluation of the facts in the light of evidence produced for the first time before it–Not included

(Rules of Procedure of the General Court, Arts 85(3), 173(3) and 188; Council Regulation No 6/2002, Art. 61)

(see paras 15, 17)
EU law—General principles of law—Right to sound administration—Diligent and impartial consideration of the case—Obligation on the institutions to allow a person being mistaken as to his legal situation to avoid the imposition of a fee provided by law—None

(Charter of Fundamental Rights of the European Union, Art. 41)

(see paras 89, 92)
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—Marks devoid of any distinctive character—Figurative mark mycard2go

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

(see paras 26, 29, 37, 46, 50)
In an appeal, when the proper constitution of the court which delivered the judgment at first instance is contested and the challenge is not manifestly devoid of merit, the appeal court is required to verify that the court was properly constituted. A ground alleging the irregular constitution of the panel of judges is a ground involving a question of public policy, which must be examined by the appeal court of its own motion, even if this irregularity was not invoked at first instance.

As is apparent from the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, one of the requirements concerning the composition of the Chamber is that courts must be independent, impartial and previously established by law.

The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions.

Under the first sentence of Article 52(3) of the Charter of Fundamental Rights, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), their meaning and scope are to be the same as those laid down by that convention.

Under the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, when interpreting the rights set out in that charter, the explanations drawn up as a way of providing guidance in its interpretation are to be given due regard by the European Union judicature.

It follows that, as regards the interpretation of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights, account should be taken of the guarantee afforded by the first sentence of Article 6(1) of the ECHR, which also lays down the principle of the lawful judge.

Having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, since the Council deliberately disregarded the legal framework laid down by the public call for applications and the rules governing the appointment of judges to the Civil Service Tribunal, the judge appointed in breach of those rules cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.

(see paras 66-71, 77, 78)
Judgment of the General Court (Second Chamber) of 1 June 2018 –

Casual Dreams v EUIPO — López Fernández (Dayaday)

(Case T‑900/16)

(European Union trade mark — Opposition proceedings — Application for EU figurative mark Dayaday — Earlier national figurative marks DAYADAY and dayaday — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(5) of Regulation (EU) 2017/1001) — Reputation — Advantage unfairly taken of the distinctive character or the repute of the earlier trade mark)

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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Reputation of the mark in the Member State or the EU—Meaning—Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see paras 28, 30-32)

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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Link between the marks (Council Regulation No 207/2009, Art. 8(5)) (see para. 29)

3. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal (Council Regulation No 207/2009, Art. 65(2)) (see para. 38)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 6 October 2016 (Case R 375/2016-2), relating to opposition proceedings between Casual Dreams and Mr López Fernández.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 October 2016 (Case R 375/2016-2);
Approximation of laws—Uniform legislation—Medicinal products for human use—Orphan medicinal products—Procedure for designating a medicinal product as an orphan medicinal product—Verification of the validity of an application for designation—Possibility to examine scientific differences between the medicinal product covered by the application and an orphan medicinal product—Not included—Refusal of validation on the ground of the applicant obtaining an autorisation to place another medicinal product on the market—Not permissible

(European Parliament and Council Regulation No 141/2000, Arts 2(a) and 5; European Parliament and Council Directive 2001/83, Arts 1(2) and 128)

(see paras 51-53, 58, 64, 65)
Fundamental rights—Right to effective judicial protection—Review of legality of EU measures—Procedures—Protection of that right by the EU judicature or by the national courts according to the legal nature of the contested measure

(Art. 19(1) TEU; Arts 263, fourth para., TFEU, 267 TFEU and 277 TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 51(1))

(see paras 38-41)
Judgment of the General Court (Seventh Chamber) of 12 July 2018 –

PA v Parliament

(Case T‑608/16)

(Civil service — Officials — Staff report — 2014 appraisal period — Promotion — 2015 appraisal period — Obligation to state reasons — Misuse of power — Article 41(1) of the Charter of Fundamental Rights)

1. Actions brought by officials — Action against a decision rejecting a complaint — Admissibility — Obligation to rule on pleas directed against the decision rejecting the complaint — Pleas devoid of independent content or purely confirmatory decision — None (Staff Regulations of Officials, Arts 90 and 91) (see paras 22-24)

2. Officials — Reports procedure — Staff report — Appraisal less favourable than the previous appraisal — Obligation to state reasons — Descriptive comments must be consistent with marks awarded (Staff Regulations of Officials, Art. 43) (see paras 30-32)

3. Actions brought by officials — Pleas in law — Misuse of powers — Meaning — Burden and administration of proof (see para. 42)

4. Officials — Reports procedure — Existence of differences between an official and his immediate superior — No effect on the latter’s ability to assess the official’s merits (Staff Regulations of Officials, Art. 43) (see paras 45, 67)

5. Officials — Promotion — Consideration of comparative merits — Procedures — Quantification of merits through the allocation of points — Administration’s discretion — Judicial review — Limits (Staff Regulations of Officials, Art. 45(1)) (see para. 86)

Re:

Application based on Article 270 TFEU and seeking annulment, first, of the applicant’s staff report for 2014, as finalised by the decision of the Secretary-General of the Parliament of 20 October 2015, second, of the decision of the Secretary-General of the Parliament of 9 December 2015 awarding him one merit point for 2014, third, of the Parliament’s decision, communicated to the staff of that institution on 30 November 2015, not to promote the applicant to Grade AST 11 in the 2015 promotion exercise and, in so far as necessary, annulment of the Parliament’s decision of 9 June 2016 rejecting the applicant’s complaint of 21 January 2016.

Operative part

The Court:

1. Dismisses the action;
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Subject-matter — Exceptions to the right of access to documents — Strict interpretation and application

(European Parliament and Council Regulation No 1049/2001, Recital 4 and Arts 1 and 4)

(see paras 19-21)
Judgment of the General Court (Second Chamber) of 11 September 2018 –

Apimab Laboratoires and Others v Commission

(Case T‑14/16)

(Consumer protection — Setting of maximum levels for polycyclic aromatic hydrocarbons in food supplements — Regulation (EEC) No 315/93 — Risk analysis — Regulation (EC) No 178/2002 — Manifest error of assessment — Proportionality — Principle of non-discrimination)

1. Approximation of laws — Contaminants in foodstuffs — Regulation No 315/93 — Setting by the Commission of maximum levels necessary for certain contaminants — Assessment of risks — Discretion of the Commission — Judicial review — Limits (Council Regulation No 315/93, Art. 8) (see paras 46-51, 111, 166)

2. Approximation of laws — Contaminants in foodstuffs — Regulation No 315/93 — Setting by the Commission of maximum levels necessary for certain contaminants — Adoption of an implementing regulation defining the maximum levels of a contaminant — Obligation of prior consultation of the European Food Safety Authority (EFSA) — None (Council Regulation No 315/93, Arts 2(3), first para., 3 and 8(3); Council Decision 1999/468, Art. 5a) (see paras 61, 64, 67)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — Need to specify all the relevant factual and legal elements — None (Art. 296, second para. TFEU) (see para. 77)

4. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) (see para. 124)

5. Approximation of laws — Contaminants in foodstuffs — Regulation No 315/93 — Setting by the Commission of maximum levels necessary for certain contaminants — Adoption of an implementing regulation defining the maximum levels of a contaminant — Emergence of new elements — Obligation to adapt the regulation (Council Regulation No 315/93, Art. 2(3)) (see para. 137)

6. EU law — Principles — Proportionality — Scope (Art. 5(4) TEU) (see para. 165)

7. EU law — Principles — Equal treatment — Meaning (see para. 174)

Re:

Action brought under Article 263 TFEU seeking the annulment in part of Commission Regulation (EU) 2015/1933 of 27 October 2015 amending Regulation (EC) No 1881/2006 as regards maximum levels for polycyclic aromatic hydrocarbons in cocoa fibre, banana chips, food supplements, dried herbs and dried spices (OJ 2015 L 282, p. 11).

Operative part

The Court:

1. Dismisses the action;
Regulation 2015/2424 amending Regulation No 207/2009 on the European Union trade mark and Regulation No 2868/95 implementing Regulation No 40/94, and repealing Regulation No 2869/95 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) amended the wording of Article 7(1)(e)(ii) of Regulation No 207/2009, which concerns a substantive rule and, more precisely, one of the absolute grounds on which a sign may be refused registration or, in conjunction with Article 52(1)(a) of Regulation No 207/2009, one of the absolute grounds on which a mark may be declared invalid. However, Regulation 2015/2424 entered into force on 23 March 2016 and it is not apparent from its terms, its objectives or its general scheme that Article 7(1)(e)(ii) of Regulation No 207/2009, in its version resulting from Regulation 2015/2424, should apply to situations existing before its entry into force.

Marks which may be refused registration on the grounds listed in Article 7(1)(b) to (d) of Regulation No 40/94 on the Community trade mark may, under Article 7(3) of that regulation, acquire a distinctive character by the use made of them. By contrast, a sign which is refused registration under Article 7(1)(e) of Regulation No 40/94 can never acquire a distinctive character for the purposes of Article 7(3) by the use made of it. Article 7(1)(e) thus concerns certain signs which are not such as to constitute trade marks and is a preliminary obstacle liable to prevent a sign consisting exclusively of the shape of a product from being capable of being registered.

Consequently, if the examination of a sign under Article 7(1)(e) of Regulation No 40/94 leads to the conclusion that one of the criteria mentioned in that provision is met, this results in a release from examination of the sign under Article 7(3) of that regulation, since registration of the sign in such circumstances is clearly impossible. That release explains the advantage of undertaking a prior examination of the sign under Article 7(1)(e) of Regulation No 40/94 in the case where several of the absolute grounds for refusal provided for in paragraph 1 may apply, although such a release may not be interpreted as implying that there is an obligation to examine that sign first under Article 7(1)(e) of Regulation No 40/94.

(see paras 34, 35)
Judgment of the General Court (Fourth Chamber) of 12 December 2018 –

Colin v Commission

(Case T‑614/16)

(Civil service — Recruitment — Notice of competition — Open competition — Conditions of admission — Non-inclusion on the reserve list — Diploma — Professional experience)

1. Officials — Actions — Acts 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. 26)

2. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Requirements to be complied with by candidates — Scope (Staff Regulations of Officials, Annex III, Art. 2) (see para. 48)

3. Officials — Competitions — Competition based on qualifications and tests — Requirement to have a diploma — Concept of a diploma giving access to post-secondary education — Determination on the basis of the legislation of the Member State in which the studies took place (see paras 56, 57)

4. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Classification of a candidate’s diploma — Obligation to take into consideration the previous classification by the same administration (Staff Regulations of Officials, Annex III, Art. 5) (see paras 63-65)

5. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Experience — Selection board’s assessment of candidates’ professional experience — Judicial review — Limits (Staff Regulations of Officials, Annex III, Arts 2 and 5) (see paras 72-75)

6. Officials — Competitions — Competition based on qualifications and tests — Conditions for admission — Supporting documents — Candidates’ obligation to ensure that documents are adequate (Staff Regulations of Officials, Annex III, Art. 2) (see para. 76)

Re:

Application pursuant to Article 270 TFEU seeking the annulment, first, of the decision of 18 February 2015 of the selection board in Open Competition EPSO/AST-SC/01/14, organised by the European Personnel Selection Office (EPSO), not to include the applicant’s name on the reserve list from which to recruit officials in the institutions of the European Union, secondly, of the decision of 17 September 2015, of the same selection board, to reject her request for a review and, thirdly, of the Commission’s rejection decision of 12 May 2016 in response to the applicant’s complaint against the selection board’s decision.

Operative part

The Court:

1. Annuls the decision of 17 September 2015 by which the selection board in Open Competition EPSO/AST-SC/01/14 confirmed, after review, that the applicant could not be included in the reserve list from that competition;

2. Dismisses the action as to the remainder;