ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

14 January 2016

Ángel Coedo Suárez

v

Council of the European Union

‛Appeal — Civil service — Officials — Disciplinary measures — Removal from post and reduction of the invalidity allowance — Dismissal of the action at first instance — Error of law — Obligation to state reasons’

Appeal:

against the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015 in Coedo Suárez v Council (F‑38/14, ECR-SC, EU:F:2015:25), seeking to have that judgment set aside.

Held:

The judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015 in Coedo Suárez v Council (F‑38/14) is set aside in so far as it rejects the second complaint of the first plea in law raised at first instance, concerning the assessment of the mitigating circumstances. The action brought by Mr Ángel Coedo Suárez before the Civil Service Tribunal in Case F‑38/14 is dismissed. Mr Coedo Suárez is to pay the costs of the proceedings before the Civil Service Tribunal and, in addition to bearing his own costs, to pay half of the costs incurred by the Council of the European Union in the present proceedings. The Council is to bear half of its own costs in the present proceedings.

Summary

Officials — Disciplinary measures — Penalty — Mitigating circumstance — An official’s state of health — Official receiving medical treatment whilst being fit for work — Failure to take into account state of health when determining the penalty to be imposed — Not permissible

(Staff Regulations, Annex IX, Art. 10)

In disciplinary matters, an official’s mere fitness for work, as established in the findings of the Invalidity Committee, is not sufficient to determine whether that person’s state of health and the treatment he is receiving constitute a mitigating circumstance which the Disciplinary Board and hence the appointing authority must take into account in deciding on the penalty to impose in the disciplinary proceedings of which he is the subject.

The fact that an official is, in principle, fit for work is not sufficient to exclude that, when present at his place of work, his services may be adversely affected, inter alia by an illness or disease and the relevant treatment. Nor does that fact exclude the official in question being put on sick leave so that he cannot be present at his place of work and in a position to perform his duties.

(see paras 29-30)
The figurative trade mark Mark 1 constituted by a combination of the colours black and red, registration of which is applied for in respect of tobacco-based products and electronic cigarettes and in respect of related products falling within Classes 9 and 34 of the Nice Arrangement, is devoid of distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the EU trade mark, because its laudatory or promotional meaning, perceived immediately and understood as such by the relevant public, eclipses any indication of the commercial origin of the goods concerned, so that the mark will not be remembered by the relevant public as an indication of provenance.

In that regard, the fact that the word ‘mark’ is capable of having several meanings is not decisive. One of those meanings is that of trade mark which clearly and essentially has a laudatory and promotional meaning for the goods concerned, since it suggests to the relevant public essentially the idea of a ‘number 1 brand’ for the goods covered by the application. Faced with that mark, the relevant public would not be led to perceive any indication of the commercial origin of the goods covered by it, beyond the promotional information that the mark applied for is ‘number 1’.

Concerning the meaning of the figurative elements, the colour combination of black for the word and red for the number, the weakly distinctive font and the difference in size between the word and the number are so lacking in any special character that they bring no distinctive character to the mark applied for as a whole. Those elements possess no feature, in particular in terms of imaginativeness or as regards the way in which they are combined, as would allow the mark to fulfil its essential function in relation to the goods covered by the application for registration.

(see paras 40, 41, 43, 44)
Case T‑20/15

Henkell & Co. Sektkellerei KG

v

European Union Intellectual Property Office

‛EU trade mark — Opposition proceedings — Application for the EU word mark PICCOLOMINI — Earlier EU word mark PICCOLO — No genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009’

Summary — Judgment of the General Court (Ninth Chamber), 14 April 2016

EU trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal — Account taken, for the purposes of applying EU law, of national legislation, case-law or academic legal writing — Lawfulness

EU trade mark — 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

EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark as a trade mark — Word mark PICCOLO

EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Probative value of the evidence — Criteria for assessment

EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Criteria for assessment — Requirement of solid and objective evidence

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 42(2) and (3) of Regulation No 207/2009

See the text of the decision. (see paras 19, 21)

See the text of the decision. (see paras 20, 22, 23)

In order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable. The statutory declaration within the meaning of Article 78(1)(f) of Regulation No 207/2009 on the EU trade mark is not sufficient in itself and is merely an indication which needs to be confirmed by other evidence. (see para. 37)

See the text of the decision. (see paras 42-51)

See the text of the decision. (see para. 53)
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Overlap of the grounds under (b) and (c) of Article 7(1) Regulation No 207/2009

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

(see para. 58)
Judgment of the General Court (Third Chamber) of 3 May 2016 —

Laboratorios Ern v EUIPO — Werner (Dynamic Life)

(Case T‑454/15)

‛EU trade mark — Opposition proceedings — Application for EU figurative mark Dynamic Life — Earlier national word mark DYNAMIN — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

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 15, 16, 45, 46)

2. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark Dynamic Life and word mark DYNAMIN (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 17, 27, 50)

3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 18)

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, 37)

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 — Decisions by national authorities not binding on EU bodies (Council Regulation No 207/2009) (see para. 35)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 27 May 2015 (Case R 441/2014-4), relating to opposition proceedings between Laboratorios Ern and Mr Werner.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 14 June 2016 —

Loops v EUIPO (Shape of a toothbrush)

(Case T‑385/15)

‛EU trade mark — International registration designating the European Union — Three-dimensional mark — Shape of a toothbrush — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 13-15)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment — Shape at issue being a ‘variant’ of the normal shapes of the type of products concerned — Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16-19)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark consisting of the shape of a toothbrush (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 28, 29)

4. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 32-34)

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 (Council Regulation No 207/2009) (see para. 35)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 30 April 2015 (Case R 1917/2014-2), concerning an application for registration of a three-dimensional sign consisting of the shape of a toothbrush as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (First Chamber) of 28 October 2016 —

Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN)

(Case T‑124/15)

‛EU trade mark — Opposition proceedings — Application for the EU figurative mark UNICORN — Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009’

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 — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see paras 35-38, 45)

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 — Figurative mark UNICORN — Word and figurative marks UNICORN and figurative mark representing a unicorn’s head (Council Regulation No 207/2009, Art. 8(5)) (see paras 40, 46, 54)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 13 January 2015 (Case R 149/2014-5), concerning opposition proceedings between Unicorn and Mercilink Equipment Leasing.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 28 September 2016 —

The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW)

(Case T‑593/15)

‛EU trade mark — Opposition proceedings — Application for EU word mark THE ART OF RAW — Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19)

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 — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 21)

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 — Word mark THE ART OF RAW — Figurative marks art and The Art Company (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24, 49-53, 57, 58)

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 — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 39)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1980/2014-1), relating to opposition proceedings between The Art Company B & S and G-Star Raw.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Appeal Chamber) of 27 October 2016 —

CW v Parliament

(Case T‑309/15 P)

‛Appeal — Civil service — Officials — Psychological harassment — Duty of the administration to provide assistance — Article 24 of the Staff Regulations — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of staff — Responsibility — Claim for damages — Decision rejecting the administrative complaint — Distortion of the evidence — Error of law’

1. Actions brought by officials — Action against a decision rejecting a complaint — Effect — Disputed measure referred to the Court — Exception — Decision not confirmatory in character — Account taken of the reasoning therein (Staff Regulations, Arts 90 and 91) (see paras 26-28, 38, 39)

2. Appeal — Appeal held to be well founded — Annulment of a decision of the Civil Service Tribunal — Transfer to the General Court of jurisdiction to hear disputes between the EU and its agents — Dispute not in a condition to be adjudicated upon — Reference to a chamber other than that of the appeal (Regulation No 2016/1192, Art. 4) (see paras 41, 42)

Re:

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F‑124/13, EU:F:2015:23), seeking the setting aside of that judgment.

Operative part

The Court:

1. Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F‑124/13);

2. Refers the case to a chamber of the General Court other than that which ruled on the present appeal;
Judgment of the General Court (Appeal Chamber) of 9 September 2016 —

De Esteban Alonso v Commission

(Case T‑557/15 P)

‛Appeal — Civil service — Article 24 of the Staff Regulations — Request for assistance — Criminal proceedings before a national court — Decision of the institution to become a civil party — Action at first instance dismissed as manifestly unfounded — Procedural irregularities — Conditions for the application of Article 24 of the Staff Regulations’

1. Judicial proceedings — Decision taken by way of reasoned order — Conditions — Observance of the rights of the defence — Scope (Rules of Procedure of the European Union Civil Service Tribunal, Art. 81) (see paras 19, 21, 22)

2. Judicial proceedings — Decision taken by way of reasoned order — Possibility of ruling without an oral procedure — No infringement of the rights of the defence — Challenge — Conditions — Obligation to challenge the assessment by the Civil Service Tribunal of those conditions (Rules of Procedure of the European Union Civil Service Tribunal, Art. 81) (see paras 23, 24, 26)

3. Officials — Obligation of administration to provide assistance — Conditions — Scope — Possibility of the administration altering its initial decision (Staff Regulations, Art. 24) (see paras 40-42, 59)

4. Officials — Obligation of administration to provide assistance — Scope — Assistance to an official subject to an internal investigation of the European Anti-Fraud Office (OLAF) — Exclusion (Staff Regulations, Art. 24) (see paras 43-45, 47)

5. Officials — Disciplinary measures — Disciplinary proceedings — Disciplinary and criminal proceedings conducted in parallel on the basis of the same facts — Obligation on the administration to respect the factual findings made in the final decision of the criminal court — Scope — Delivery of a decision that no need to adjudicate in relation to the official concerned — Fact not capable of excluding the existence of failures of the person concerned to meet professional obligations (Staff Regulations, Annex IX, Art. 25) (see paras 55-57)

Re:

APPEAL brought against the order of the European Union Civil Service Tribunal (Third Chamber) of 15 July 2015 in De Esteban Alonso v Commission (F‑35/15, EU:F:2015:87), seeking to have that order set aside.

Operative part

The Court:

1. Dismisses the appeal;
Judgment of the General Court (Second Chamber) of 13 September 2016 —

Paglieri Sell System v EUIPO (APOTEKE)

(Case T‑563/15)

‛European Union trade mark — Application for figurative mark APOTEKE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009’

1. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU — Recourse by the Board of Appeal to implicit reasoning — Lawfulness — Conditions (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 14, 17)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope (Council Regulation No 207/2009, Arts 7(1), and 75, first sentence) (see paras 15, 16)

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 — Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 25, 26)

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 — Assessment of the descriptive nature of a sign — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 27)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Figurative mark APOTEKE (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 28, 30, 36, 38, 39, 44-55, 58)

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 (see paras 59-61)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 23 July 2015 (Case R 2428/2014-5) concerning an application for registration of the figurative sign APOTEKE as a European Union trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 28 February 2017 — Labeyrie v EUIPO — Delpeyrat (Representation of a sowing of light coloured fish on a dark background)

(Case T‑767/15)

(EU trade mark — Revocation proceedings — EU figurative mark representing a sowing of light coloured fish on a dark background — Declaration of revocation — Genuine use of the mark — Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009 — Form differing by elements not altering the distinctive character)

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), second paragraph, (a), of Regulation No 207/2009—Examination of alteration of distinctive character

(Council Regulation No 207/2009, Arts 15(1), second subpara., (a), and 51(1)(a))

(see paras 18, 20-22, 46)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 15 October 2015 (Case R 2694/2014-1), relating to revocation proceedings between Depeyrat and Labeyrie.

Operative part

The Court:

1. Dismisses the action;

2. Orders Labeyrie to bear its own costs as well as those incurred by EUIPO;
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—Likelihood of confusion with the earlier mark—Weighing elements of similarity or difference between the signs—Objective marketing considerations to be taken into account (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 29)