ddrg/super_eurlex huggingface dataset:
Case T-449/07

Thomas Rotter

v

Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of an arrangement of sausages — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94’

Judgment of the Court of First Instance (Second Chamber), 5 May 2009 II ‐ 1073

Summary of the Judgment

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))

The three-dimensional sign representing the shape of an arrangement of sausages for which registration is sought in respect of ‘charcuterie’ in Class 29 under the Nice Agreement is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

The goods at issue, namely charcuterie (Wurstwaren), are sold not only by butchers, but also in supermarkets, in areas specifically intended for that purpose and in refrigerated goods departments. They are, therefore, everyday consumer goods intended for the average consumer in the European Union. As regards the shape applied for, that is to say, an arrangement of a number of sausages, that arrangement differs from the most widespread classic shape of the goods at issue, namely that of a sausage. It has not been demonstrated how the shape applied for differs significantly from the usual shape in which sausages are presented in trade. It follows therefrom that, as the goods at issue — charcuterie — are everyday consumer goods, the average consumer will not perceive the shape applied for as an indication of the commercial origin of those goods.

(see paras 25, 26, 30, 31)
Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 — Promomadrid v OHIM (MADRIDEXPORTA)

(Case T-180/07)

‛Community trade mark — Application for Community figurative mark MADRIDEXPORTA — Absolute grounds 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 26, 38)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 7 March 2007 (Case R 1130/2006-1) concerning an application for registration of the figurative mark MADRIDEXPORTA as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Promomadrid Desarrollo Internacional de Madrid, SA Community trade mark sought: Composite mark MADRIDEXPORTA for goods and services in Classes 16, 35, 36, 38, 39, 41 and 42 — Application No 4659553 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) of 7 March 2007 (Case R 1130/2006-1);
Judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 — Laboratorios Del Dr. Esteve v OHIM — Ester C (ESTER-E)

(Case T-230/07)

‛Community trade mark — Opposition proceedings — Application for Community word mark ESTER-E — Earlier Community figurative mark ESTEVE — Relative ground for refusal — No likelihood of confusion — 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 39, 41, 46, 48, 56, 60)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 17 April 2007 (Case R 737/2006-2) concerning opposition proceedings between Laboratorios Del Dr. Esteve, SA and The Ester C Company.

Information relating to the case

Applicant for the Community trade mark: The Ester C Company Community trade mark sought: The Community word mark ‘ESTER-E’ for goods and services in Classes 3 and 5 — Application No 3163946 Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Del Dr. Esteve, SA Mark or sign cited in opposition: The Community figurative mark ‘ESTEVE’ for goods in Classes 1, 5 and 42 and the national figurative marks ‘ESTEVE’ and ‘ESTEVE-Laboratorio Del Dr. Esteve S.A.’ for goods in Class 5 Decision of the Opposition Division: Opposition upheld Decision of the Board of Appeal: Opposition dismissed

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Observations of third parties and opposition

–

Examination of the opposition

–

Proof of use of the earlier mark

–

Use in a form without differences capable of affecting the distinctive character of the trade mark (Council Regulation No 40/94, Arts 15(2)(a) and 43(2) and (3)) (see paras 36, 50

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1060/2006‑1), concerning opposition proceedings between Coloris Global Coloring Concept and Esber, SA.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Esber, SA 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 29, 52-54

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 4 December 2006 (Case R 1330/2005-2), relating to opposition proceedings between DSB and Mr K. Goncharov.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Mr Karen Goncharov to pay the costs.
Keywords



Keywords

Accession of new Member States to the Communities — 2003 Act of Accession — Agriculture — Common organisation of the markets — Transitional measures concerning trade in agricultural products — Assessment of excess stocks — Attenuation of the obligation to eliminate excess stocks (2003 Act of Accession, Annex IV, Section 4(2); Commission Regulation No 1972/2003) (see para. 30)

2. Accession of new Member States to the Communities — 2003 Act of Accession — Agriculture — Common organisation of the markets — Transitional measures concerning trade in agricultural products — Elimination by new Member States of their excess stocks — Concept — Commission’s margin of discretion (2003 Act of Accession, Annex IV, Section 4(2)) (see paras 40-48)

3. Accession of new Member States to the Communities — 2003 Act of Accession — Agriculture — Common organisation of the markets — Transitional measures concerning trade in agricultural products — Duty of new Member States to eliminate their excess stocks — Commission decision imposing a payment obligation not designed to cover the costs of eliminating surpluses from the internal market — Incompatibility with Annex IV, Section 4(2) of the Act of Accession — Annulment (2003 Act of Accession, Annex IV, Section 4(2)) (see paras 49-52, 75-77, 79-80)
Keywords



Keywords

Actions for annulment – Jurisdiction of the EU judicature – Claim seeking that directions be issued to an institution – Claim for a declaratory judgment – Inadmissibility (Art. 230 EC) (see para. 50)

2. State aid – Commission decision finding aid to be incompatible with the common market – Duty to state reasons – Scope – Decision in line with previous decisions – Summary reasoning – Decision going well beyond previous decisions – Express reasoning (Arts 87(1) EC and 253 EC) (see paras 52-54, 57-58, 70)

3. State aid – Effect on trade between Member States – Adverse effect on competition – Criteria for assessment – Small size and limited extent of aid not a priori excluding the possibility of trade being affected (Art. 87(1) EC) (see paras 81-85, 88-90, 97, 100)

4. State aid – Prohibition – Exceptions – Discretion of the Commission – Judicial review (Art. 87(3) EC) (see paras 107-108)

5. State aid – Prohibition – Exceptions – Aid eligible for the derogation laid down in Article 87(3)(c) EC – Aid not needed or having an incentive effect – Exclusion (Art. 87(3)(c) EC) (see paras 118-124)

6. State aid – General aid scheme approved by the Commission – Approval subject to a reservation requiring individual notification of certain aids – Examination of such a notified aid having regard only to the rules of the Treaty (see paras 144, 147-149)

7. State aid – Concept – Assessment according to the criterion of the private investor – Capital contribution (Art. 87(1) EC) (see paras 157-158)

8. State aid – Commission decision – Assessment of legality by reference to the information available at the time of adoption of the decision – Foreseeable development of competition to be taken into account (Art. 87(1) EC) (see paras 168-170)

9. State aid – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Criteria for assessment – Infringement – Consequences – Annulment of the decision where defence rights infringed (Art. 88(2) EC) (see paras 174-176)

10. Union law – Principles – Protection of legitimate expectations – Possibility of the Commission taking account of the development of the common market in relation to a previous decision – No breach of the principle of equal treatment (see paras 199-200, 202-203)
Keywords

Subject of the case

Operative part



Keywords

EU budget

—

Community financial assistance

—

Obligation of the beneficiary to comply with the conditions for grant of the aid

—

Financing covering only expenses actually incurred

—

Proof of the reality of the expenses declared

—

None

—

Ineligible expenses (Art. 274 EC) (see paras 29, 33, 35, 36, 46, 47, 75

)

Subject of the case

Re:

ACTION on the basis of an arbitration clause, seeking an order that the Commission pay (i) the sums allegedly due to the applicant and (ii) damages, following termination of a contract relating to Community financial support for the project ‘e Content Exposure and Business Opportunities’ (Contract No EDC‑53007 EEBO/27873), concluded in the framework of the multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the information society.

Operative part

Operative part

The Court:

1. Orders the European Commission to pay Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE the sum of EUR 8 843.10;

2. Dismisses the action as to the remainder;

3. Orders the European Commission to pay 5% of its own costs and 5% of the costs of Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis, and the latter to pay 95% of its own costs and 95% of the Commission’s costs.
Judgment of the Court of First Instance (Fourth Chamber) of 9 July 2008 – BYK‑Chemie v OHIM (Substance for Success)

(Case T-58/07)

Community trade mark – Application for the Community word mark Substance for Success – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94

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 24-25, 30)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 9 January 2007 (Case R 816/2006-4) concerning an application for registration of the word sign Substance for Success as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: BYK-Chemie GmbH Community trade mark sought: Word mark Substance for Success for goods and services in Classes 1 and 40 to 42 – Application No 3660552 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Third Chamber) of 23 April 2008 – Leche Celta v OHIM – Celia (Celia)

(Case T-35/07)

Community trade mark – Opposition – Application for Community figurative mark Celia – Earlier national word mark CELTA – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94

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 para. 49)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 5 December 2006 (Case R 294/2006-4) concerning opposition proceedings between Leche Celta, SL and Celia SA.

Information relating to the case

Applicant for the Community trade mark: Celia SA Community trade mark sought: Figurative mark Celia for goods and services in Classes 16, 29 and 38 – Application No 2977221 Proprietor of the mark or sign cited in the opposition proceedings: Leche Celta, SL Mark or sign cited in opposition: National word mark CELTA for goods in Class 29 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 (Eighth Chamber) of 12 November 2008 – Spain v Commission

(Case T-60/07)

EAGGF – Guarantee Section – Expenditure excluded from Community financing – Fruit and vegetable sector – Environmental protection – Administrative procedure

1. Agriculture – EAGGF – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules (see para. 49)

2. Agriculture – Common agricultural policy – EAGGF financing (Council Regulation No 1258/1999, Arts 1(2) and 2(2)) (see para. 83)

3. Agriculture – EAGGF – Clearance of accounts (Council Regulation No 1258/1999, Art. 7(4); Commission Regulation No 1663/95, Art. 8(1)) (see para. 99)

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 and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96), in so far as it excludes certain expenditure incurred by the Kingdom of Spain in the fruit and vegetable sector.

Operative part

The Court:

1. Dismisses the application;

2. Orders the Kingdom of Spain to pay the costs.
Judgment of the Court of First Instance (Seventh Chamber) of 15 October 2008 – TridonicAtco v OHIM (Intelligent Voltage Guard)

(Case T-297/07)

Community trade mark – Application for the Community figurative mark Intelligent Voltage Guard – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation(EC) No 40/94

1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Seperate examination of the grounds for refusal in relation to each of the products or services referred to in the application registration – Duty to state reasons for a refusal of registration (Council Regulation No 40/94, Art. 7(1)) (see para. 22)

2. 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 29-39)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 31 May 2007 (Case R 108/2007-2) concerning an application to register the figurative mark Intelligent Voltage Guard as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: TridonicAtco GmbH & Co. KG Community trade mark sought: Figurative mark Intelligent Voltage Guard for goods in Classes 9 and 11 – Application No W874778 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the application;
Judgment of the Court of First Instance (Fourth Chamber) of 21 January 2009 – Korsch v OHIM (PharmaCheck)

(Case T-296/07)

Community trade mark – Application for the Community word mark PharmaCheck – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 – Restriction of the list of goods

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 31, 41, 53)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 5 June 2007 (Case R 358/2007-4) concerning an application for registration of the word sign PharmaCheck as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Korsch AG Community trade mark sought: Word mark PharmaCheck for goods in Class 9 – Application No 5310214 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (First Chamber) of 16 December 2008 – Focus Magazin Verlag v OHIM – Editorial Planeta (FOCUS Radio)

(Case T-357/07)

Community trade mark – Opposition proceedings – Application for Community word mark FOCUS Radio – Earlier national word marks FOCUS MILENIUM – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94

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 27-28, 46)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 30 July 2007 (Case R 269/2005-4) relating to opposition proceedings between Editorial Planeta, SA, and Focus Magazin Verlag GmbH.

Information relating to the case

Applicant for the Community trade mark: Focus Magazin Verlag GmbH Community trade mark sought: Word mark FOCUS Radio for goods and services in Classes 9, 16, 35, 38, 41 and 42 — Application No 2340289 Proprietor of the mark or sign cited in the opposition proceedings: Editorial Planeta, SA. Mark or sign cited in opposition: National word and figurative marks FOCUS MILENIUM, PLANETA FOCUS and PLANETA FOCUS 99 for goods and services in Classes 9, 16 and 41 Decision of the Opposition Division: Opposition partially upheld Decision of the Board of Appeal: Partial annulation of the decision of the Opposition Division and partial dismissal of the application for the Community trade mark





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Sixth Chamber) of 25 March 2009 – allsafe Jungfalk v OHIM (ALLSAFE)

(Case T-343/07)

Community trade mark – Application for the Community word mark ALLSAFE – Absolute grounds for refusal – Lack of distinctive character – Descriptive character – Article 7(1)(b) and (c) of Regulation (EC) No 40/94

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 25, 27, 37, 40)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 July 2007 (Case R 454/2006-4) concerning the registration of the word sign ALLSAFE as a community trade mark.

Information relating to the case

Applicant for the Community trade mark: allsafe Jungfalk GmbH & Co. KG Community trade mark sought: Word mark ALLSAFE for goods and services in Classes 6, 12, 22, 35, 39 and 42 – Application No 2940534 Decision of the Examiner : Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Third Chamber) of 25 November 2008 – CFCMCEE v OHIM (SURFCARD)

(Case T-325/07)

Community trade mark – Application for Community word mark SURFCARD – Absolute ground for refusal – Partially descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94

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 47, 64, 68, 73, 77-78, 81-84)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 14 June 2007 (Case R 1130/2006-1) concerning an application for registration of the word sign SURFCARD as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Caisse fédérale du Crédit mutuel Centre-Est Europe (CFCMCEE) Community trade mark sought: Word mark SURFCARD for goods and services in Classes 9, 36 and 38 – Application No 3837564 Decision of the Opposition Division: Partial refusal of registration Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 June 2007 (Case R 1130/2006-1) to the extent that it refuses the registration as a Community trade mark of the word sign SURFCARD for ‘magnetic data media, optical data media’ falling within Class 9 and ‘credit card services, debit card services’ falling within Class 36 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2. Dismisses the action as to the remainder;