ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Fifth Chamber) of 10 June 2009 – Vivartia v OHIM – Kraft Foods Schweiz (milko ΔΕΛΤΑ)

(Case T-204/06)

Community trade mark – Opposition proceedings – Application for Community figurative mark milko ΔΕΛΤΑ – Earlier Community figurative mark MILKA – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 28, 48-50)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 8 June 2006 (Case R 540/2005-2) relating to opposition proceedings between Kraft Foods Schweiz Holding AG and Delta Protypos Viomichania Galaktos AE.

Information relating to the case

Applicant for the Community trade mark: Vivartia ABEE Proïonton Diatrofis kai Ypiresion Estiasis, formerly Delta Protypos Viomichania Galaktos AE Community trade mark sought: Figurative mark milko ΔΕΛΤΑ for goods in Class 30 – Application No 2474674 Proprietor of the mark or sign cited in the opposition proceedings: Kraft Foods Schweiz Holding AG Mark or sign cited in opposition: Community, international and national figurative marks and word marks MILKA for goods in classes 5, 29, 30 and 32 Decision of the Opposition Division: Opposition upheld Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;

2. Orders Vivartia ABEE Proïonton Diatrofis kai Ypiresion Estiasis to pay the costs.
Judgment of the General Court (Third Chamber) of 27 April 2010 – Union Investment Privatfonds v OHIM – Unicre-Cartão International De Crédito (unibanco)

(Case T-392/06)

Community trade mark – Opposition procedure – Application for the figurative Community mark unibanco – Prior national figurative marks UniFLEXIO, UniVARIO and UniZERO – Late production of documents – Discretion conferred by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009)

Community trade mark – Appeals procedure – Appeal brought against a decision of the Opposition Division of the Office – Examination by Board of Appeal – Scope – Evidence not submitted in support of the opposition within the prescribed time-limit (Council Regulation No 40/94, Art. 74(2)) (see paras 30-32)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 10 October 2006 (Case R 442/2004-2) concerning an opposition procedure between Union Investment Privatfonds GmbH and Unicre-Cartão International De Crédito, SA.

Information relating to the case

Applicant for the Community trade mark: Unicre-Cartão International De Crédito, SA Community trade mark sought: Figurative mark unibanco for services in Classes 36 and 38 – Application No 1871896 Proprietor of the mark or sign cited in the opposition proceedings: Union Investment Privatfonds GmbH Mark or sign cited in opposition: German figurative marks UniFLEXIO and UniVARIO for services in Classes 35 and 36; German figurative mark UniZERO for services in Class 36 Decision of the Opposition Division: Opposition dismissed Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Second Chamber) of 19 November 2009 – Agencja Wydawnicza Technopol v OHIM (1000)

(Case T-298/06)

Community trade mark – Application for Community word mark 1000 – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

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 (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 24-31)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 August 2006 (Case R 447/2006-4), relating to the application for registration of the word mark 1000 as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Agencja Wydawnicza Technopol sp. z o.o. Community trade mark sought: Word mark 1000 for goods and services in Classes 16, 28 and 41 – Application No 4372264 Decision of the Examiner: Application refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 24 March 2011 – Kaimer and Others v Commission

(Case T-379/06)

Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Rights of the defence – Participation in the infringement – Duration of the infringement – Fines – Attenuating circumstances – Proportionality – Equal treatment

1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Non-communication of an incriminating document – Consequences varying in accordance with the importance of the document having regard to the burden of proof on the Commission (see paras 30-32)

2. Competition – Agreements, decisions and concerted practices – Burden of proof – Degree of precision required of the evidence used by the Commission (Art. 81(1) EC) (see para. 47-49)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proof – Statement of an incriminated undertaking challenged by other undertakings party to the same agreement – Probative value – Assessment (Art. 81(1) EC) (see para. 50)

4. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof (Art. 81(1) EC) (see para. 51)

5. Competition – Agreements, decisions and concerted practices – Participation of an undertaking in anti-competitive initiatives – Tacit approval without public distancing sufficient to render the undertaking liable (Art. 81(1) EC) (see paras 86-88)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Commission Communication 98/C 9/03) (see paras 98-99)

Re:

APPLICATION for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F‑1/38.121 – Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part

The Court:

1. Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 – Fittings) in so far as it relates to the period from 30 July 1996 to 31 July 1997 as regards the participation of Kaimer GmbH & Co. Holding KG and Sanha Kaimer GmbH & Co. KG and the period from 1 January 1998 to 14 July 1999 as regards the participation of Sanha Italia Srl;

2. Sets the amount of the fine imposed on Kaimer at EUR 7.15 million, in respect of which it is jointly and severally liable with Sanha Kaimer as to EUR 7.15 million and with Sanha Italia as to EUR 6.325 million;

3. Dismisses the action as to the remainder;

4. Orders Kaimer, Sanha Kaimer and Sanha Italia to bear their own costs and to pay 50% of the costs of the European Commission;
72

It is apparent from paragraphs 64 to 71 above that the rules governing the harmonisation of domestic fiscal legislation, including the rules on excise duties, laid down in Article 93 EC and in Directive 92/81, and the rules on State aid set out in Articles 87 EC to 89 EC pursue the same objective, namely to promote the proper functioning of the internal market by combating, especially, distortion of competition. In the light of their common objective, and contrary to the view advocated by the Commission, in order for those different rules to be implemented consistently, the notion of distortion of competition must be regarded as having the same scope and the same meaning with regard to both the harmonisation of domestic fiscal legislation and State aid. Moreover, it is clear from paragraphs 66 to 70 above that the rules governing the harmonisation of domestic fiscal legislation, including the rules on excise duties, laid down in Article 93 EC and in Directive 92/81 expressly confer on the European Union institutions — that is to say, the Commission, which submits a proposal and the Council, which enacts a measure — the responsibility for assessing whether competition may be distorted. The purpose of this is to decide whether or not to authorise a Member State to apply, or continue to apply, an exemption from the harmonised excise duty under Article 8(4) of Directive 92/81, or whether there may be unfair competition or distortion of the operation of the internal market justifying a review of an authorisation already granted under that provision, as provided for in Article 8(5) of Directive 92/81. If there is a negative assessment, the Commission must propose to the Council that it should not authorise the exemption sought or, where appropriate, amend or abolish the authorisation for exemption already granted. If the Council arrives at a different assessment, the Commission may have recourse to its powers under Article 230 EC to bring an action before the European Union courts for annulment of the Council’s decision to authorise an exemption or to maintain an authorisation for exemption already granted so that those courts may review whether, from an objective point of view, there is no distortion of competition, unfair competition or distortion of the operation of the internal market as a result of such exemption.
Keywords

Subject of the case

Operative part



Keywords

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 (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 46, 50, 55

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 12 March 2007 (Case R 8/2006-4) concerning an application for registration of the word mark STEADYCONTROL as a Community trade mark.

Information relating to the case

>lt>7

Operative part

Operative part

The Court:

1. Dismisses the application;

2. Orders Eurocopter SAS to pay the costs.
Keywords

Subject of the case

Operative part



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

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 26, 30, 56-57

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 8 February 2007 (Case R 302/2005-4), relating to opposition proceedings between Altana Pharma AG and Aventis Pharma SA.

Information relating to the case

>lt>10

Operative part

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 February 2007 (Case R 302/2005‑4);

2. Orders OHIM to bear its own costs and to pay those incurred by Aventis Pharma SA;

3. Orders Nycomed GmbH to bear its own costs.
Keywords

Subject of the case

Operative part



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

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 26, 43

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 8 February 2007 (Case R 660/2006-2) concerning opposition proceedings between Alcon Inc. and *Acri.Tec AG Gesellschaft für ophthalmologische Produkte.

Information relating to the case

>lt>12

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Alcon Inc. to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 26, 30

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.

Information relating to the case

>lt>20

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Somm Srl to pay the costs.
Keywords

Summary



Keywords

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

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

Summary

From the point of view of average English-speaking consumers aged between 18 and 70 years, the verbal sign FUN, registration of which is sought for ‘land motor vehicles and parts and fittings thereof’ in Class 12 of the Nice Agreement, is not descriptive of the goods covered by the application for a Community trade mark for the purposes of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark.

In connection with land motor vehicles, the sign ‘FUN’ may be understood as indicating that they can be amusing or that they can be a source of amusement. The sign ‘FUN’ can thus be viewed as giving the goods a positive image, like an image for promotional purposes, by giving the relevant consumer the idea that a car can be a source of amusement. None the less, although, in some cases, a land motor vehicle can be a source of amusement for its driver, the sign ‘FUN’ does not go beyond suggestion.

Accordingly the link between the word ‘fun’, on the one hand, and land motor vehicles, on the other hand, is too vague, uncertain and subjective to confer descriptive character on that word in relation to those goods.

Unlike some indications that are descriptive of the characteristics of a vehicle, such as ‘turbo’, ‘ABS’ or ‘4x4’, the sign ‘FUN’ on the back of a vehicle cannot serve to designate directly a land motor vehicle or one of its essential characteristics. If the sign is placed in that position, the relevant consumer will perceive it as designating the commercial origin of the goods.

The goods designated in the application for registration as parts and fittings for land motor vehicles are meant to be used exclusively in connection with those vehicles and cannot be used alone. The parts and fittings for land motor vehicles covered by the application for registration are inseparably linked to those vehicles and it is therefore appropriate to adopt a solution in relation to those parts and fittings that is identical to that adopted in relation to land motor vehicles.

(see paras 27, 34-36, 44)
Keywords

Subject of the case

Operative part



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

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 49-50

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 October 2006 (Case R 146/2006-4) relating to opposition proceedings between Galderma SA and Mr Tihomir Lelas.

Information relating to the case

>lt>8

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Galderma SA to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

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 (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 30, 33, 47, 49-51

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 7 March 2007 (Case R 1479/2005‑1) concerning an application for registration of the word sign TDI as a Community trade mark.

Information relating to the case

>lt>2

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Volkswagen AG to bear its own costs and to pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs).
Judgment of the Court of First Instance (Eighth Chamber) of 11 June 2009 — Greece v Commission

(Case T-33/07)

‛EAGGF — Guarantee Section — Expenditure excluded from Community financing — Olive oil, cotton, dried grapes and citrus fruits — Non-compliance with payment deadlines — Period of 24 months — Assessment of the expenditure to be excluded — Key controls — Principle of proportionality — Principle of ne bis in idem — Extrapolation of the findings of default’

1. Agriculture — EAGGF — Clearance of accounts (Commission Regulation No 1663/95, as amended by Regulation No 2245/1999, Art. 8(1)) (see paras 80-82, 116, 117, 140, 197, 265, 279, 285, 292-294, 321, 372)

2. Acts of the institutions — Regulations — Regulation prescribing specific control measures (see paras 166, 190)

3. Community law — Principles — Protection of legitimate expectations — Conditions (see para. 227)

4. Agriculture — Common agricultural policy — EAGGF financing — Accounts clearance procedure (Council Regulation No 1258/1999, Art. 7(4), fifth para., (a); Commission Regulation No 1663/95, as amended by Regulation No 2245/1999, Art. 8(1)) (see paras 230-232, 236, 240, 381)

5. Actions for annulment — Jurisdiction of the Community judicature — Commission decision withdrawing Community financial assistance (Art. 231 EC) (see para. 380)

Re:

APPLICATION for partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96), in so far as it relates to certain expenditure incurred by the Hellenic Republic in the sectors of olive oil, dried grapes, citrus fruit and financial control.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



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 enjoying a reputation

–

Protection of well-known earlier mark extended to dissimilar goods or services (Council Regulation No 40/94, Art. 8(5)) (see paras 21, 24-25, 35-36, 40

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 18 October 2006 (Case R 415/2005-1), concerning opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and L’Oréal SA.

Information relating to the case

>lt>1

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders L’Oréal SA to pay the costs.
Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 — Pigasos Alieftiki Naftiki Etaireia v Council and Commission

(Case T-162/07)

‛Non-contractual liability — Customs union — Proof of the Community nature of products of sea-fishing — Submission of certain documents as proof not possible — Sufficiently serious breach of a rule of law conferring rights on individuals — Liability of the Community in the absence of unlawful conduct by its bodies’

1. Non-contractual liability — Conditions — Sufficiently serious breach of a rule of law intended to confer rights on individuals (Art. 288, second para., EC) (see paras 45-47)

2. Non-contractual liability — Article 288, second para., EC — Scope (Art. 288, second para., EC) (see paras 74-77)

Re:

ACTION for damages to compensate for the damage alleged to have been suffered by the applicant as a result of the fact that the Council and the Commission did not adopt provisions enabling the customs authorities of a Member State to accept as proof of the Community nature of products of sea-fishing documents other than the T2M form provided for in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Fifth Chamber) of 29 October 2009 — Peek & Cloppenburg v OHIM — Redfil (Agile)

(Case T-386/07)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark Agile — Earlier Community and national word marks Aygill’s — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009’

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 16, 42-44)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 26 July 2007 (Case R 1324/2006-2), relating to opposition proceedings between Peek & Cloppenburg and Redfil, SL.

Information relating to the case

Applicant for the Community trade mark: Redfil, SL Community trade mark sought: Figurative mark Agile for goods in Classes 18, 25 and 28 — Application No 2659456 Proprietor of the mark or sign cited in the opposition proceedings: Peek & Cloppenburg Mark or sign cited in opposition: Community and national word mark Aygill’s for goods in Classes 3, 6, 8, 9, 11, 14, 16, 18, 20, 21 and 24 to 28 Decision of the Opposition Division: Opposition upheld in its entirety Decision of the Board of Appeal: Annulment of the Opposition Division’s decision and dismissal of the opposition in its entirety

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) of 26 July 2007 (Case R 1324/2006 2);

2. Orders OHIM to pay the costs incurred by Peek & Cloppenburg;