ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fifth Chamber) of 16 January 2014 — Steiff v OHIM (Metal button in the middle section of the ear of a soft toy)

(Case T‑433/12)

‛Community trade mark — Application for a Community trade mark consisting of fixing a metal button in the middle section of the ear of a soft toy — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EC) 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctiveness — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 17-21)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Mark consisting of a metal button in the middle section of the ear of a soft toy (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24-36)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 23 July 2012 (Case R 1693/2011-1) concerning an application for registration of a sign consisting of fixing of a metal button in the middle section of the ear of a soft toy as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;

2. Orders Margarete Steiff GmbH to pay the costs.

Judgment of the General Court (Fifth Chamber) of 16 January 2014 — Steiff v OHIM (Metal button in the middle section of the ear of a soft toy)

(Case T‑433/12)

‛Community trade mark — Application for a Community trade mark consisting of fixing a metal button in the middle section of the ear of a soft toy — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EC) 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctiveness — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 17-21)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Mark consisting of a metal button in the middle section of the ear of a soft toy (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24-36)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 23 July 2012 (Case R 1693/2011-1) concerning an application for registration of a sign consisting of fixing of a metal button in the middle section of the ear of a soft toy as a Community trade mark.

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 — Genuine use — Concept — Interpretation having regard to the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 19, 20)

2. Community 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 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 21-25)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 23 May 2012 (Case R 2079/2010‑4), relating to opposition proceedings between Globosat Programadora Ltda and Sport TV Portugal, SA.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Globosat Programadora Ltda to pay the costs.
Judgment of the General Court (Sixth Chamber) of 15 May 2014 — Katjes Fassin v OHIM (Yoghurt-Gums)

(Case T‑366/12)

‛Community trade mark — Application for Community figurative mark Yoghurt-Gums — Absolute grounds for refusal — Distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 13, 14, 17, 27)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Concept — Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 15, 16)

3. 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 — Figurative mark Yoghurt-Gums (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 18, 19, 24-26, 32, 33)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 11 June 2012 (Case R 523/2012-4) concerning registration of the figurative sign Yoghurt-Gums as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
3.

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 — Similarity between the goods or services in question — Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 29, 30)
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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 34)

2. 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 — Figurative mark Sani — Figurative marks Hani or llani and RANI (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19-21, 37-40)

3. 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 — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 30)

4. 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 — Weighting of the marks concerned — Objective marketing considerations to be taken into account (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 42)

Subject of the case

Re:

ACTION against the decision of the Fourth Board of Appeal of OHIM of 27 September 2012 (Case R 236/2012-4), concerning opposition proceedings between Aujan Industries Co. (S J C) and Global-Invest Bartosz Turek.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Rani Refreshments FZCO to pay the costs.
Judgment of the General Court (Third Chamber) of 25 November 2014 —

Royalton Overseas v OHIM — S.C. Romarose Invest (KAISERHOFF)

(Case T‑556/12)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark KAISERHOFF — Earlier national word mark KAISERHOFF — Suspension of the administrative proceedings — Rules 20 and 50 of Regulation (EC) No 2868/95 — ‘Examination of the facts by the Office of its own motion’ — Article 76(1) of Regulation (EC) No 207/2009’

1. Community 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 — Exclusion (Council Regulation No 207/2009, Art. 65) (see para. 19)

2. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Duty of diligence (Council Regulation No 207/2009, Art. 76(1)) (see para. 27)

3. Community trade mark — Appeals procedure — Appeal to a Board of Appeal — Stay of proceedings — Conditions (Commission Regulation No 2868/95, Art. 1, Rule 20(7)(c)) (see paras 30, 31, 33)

4. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Stay of proceedings — Action for suspension based on an action for invalidity brought against the previous trade mark — Dismissal of the application by reason of the introduction of the said action during the opposition procedure — Inadmissibility (Commission Regulation No 2868/95, Art. 1, Rules 20(7)(c)) (see paras 38-42)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 4 October 2012 (Case R 2535/2011‑1) concerning opposition proceedings between S.C. Romarose Invest Srl and Royalton Overseas Ltd.

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 4 October 2012 (Case R 2535/2011‑1) concerning opposition proceedings between S.C. Romarose Invest Srl and Royalton Overseas Ltd;

2. Orders OHIM to bear its own costs and to pay half of the costs incurred by Royalton Overseas, including those necessarily incurred by Royalton Overseas for the purposes of the proceedings before the Board of Appeal of OHIM;
Judgment of the General Court (Fifth Chamber) of 15 January 2015 — Ziegler and Ziegler Relocation v Commission

(Joined Cases T‑539/12 and T‑150/13)

‛Non-contractual liability — Competition — International removal services market in Belgium — Removals of officials and other staff of the EU — Decision finding an infringement of Article 101 TFEU — Cover quotes — Scope of liability of an institution — Principle of res judicata — Due diligence — Causal link’

1. Judicial proceedings — Res judicata — Scope (Arts 268 TFEU and 340, second para., TFEU) (see paras 37, 38)

2. Actions for damages — Autonomy in relation to the action for annulment — Limits — Action seeking the withdrawal of an individual decision which has become definitive — Inadmissibility (Arts 268 TFEU and 340, second para., TFEU) (see paras 40-43)

3. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions — No obligation on the court to examine in a given order (Art. 340, second para., TFEU) (see paras 59, 60)

4. Non-contractual liability — Conditions — Causal link — Damage resulting from failure of an institution to act — Burden of proof (Art. 340, second para., TFEU) (see paras 63-66, 90)

5. Non-contractual liability — Compensation for damage caused by EU servants in the performance of their duties — Activity not included in the performance of the duties of that servant — No liability (Art. 340, second para., TFEU) (see paras 72, 73)

6. Actions for damages — Autonomous form of action — Exhaustion of national rights of action — Application in EU competition law (Arts 101(1) TFEU, 268 TFEU and 340, second para., TFEU; Council Regulation No 1/2003, Art. 7(1)) (see paras 84, 85, 88)

7. Non-contractual liability — Conditions — Sufficiently serious breach of EU law — Infringement of the principle of sound administration — Infringement of the principle of sound administration — Inclusion (Art. 340, second para., TFEU) (see paras 94, 96, 97)

8. Non-contractual liability — Conditions — Omissions of EU institutions — Requirement that a legal duty to act be disregarded (Art. 340, second para., TFEU) (see para. 95)

Re:

ACTION seeking compensation for damage allegedly caused by the adoption of Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services), and for damage allegedly caused by the continuation of the practice of ‘cover quotes’ after the adoption of Decision C(2008) 926, between 11 March 2008 and 1 January 2014.

Operative part

The Court:

1. Dismisses the actions;

2. Orders Ziegler SA to bear its own costs and to pay those incurred by the European Commission in Case T‑539/12;
Keywords

Summary



Keywords

1. Actions for annulment — Actionable measures — Concept — Invoice of the European Chemicals Agency (ECHA) establishing the exact amount of payments due — Included

(Art. 263 TFEU)

2. Plea of illegality — Scope — Measures the illegality of which may be pleaded — General measure providing the basis of the contested decision — Need for a legal connection between the contested measure and the contested general act

(Arts 263 TFEU and 277 TFEU)

3. Approximation of laws — Fees due to the European Chemicals Agency (ECHA) — Regulation No 340/2008 — Application for registration of a substance — False declaration — Imposition of an administrative fee by the Agency — Amount of that fee more than 17 times higher than the amount of the fee due for registration of the substance — Breach of principle of proportionality

(Commission Regulation No 340/2008, recital 11)

Summary

1. See the text of the decision.

(see para. 21)

2. See the text of the decision.

(see paras 24, 25)

3. The principle of proportionality is one of the general principles of EU law and requires that measures implemented through EU law provisions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them. Furthermore, where the institution which adopted the measure has a broad discretion, only if a measure is manifestly inappropriate having regard to the objective which the competent institution is required to pursue can its lawfulness be affected.

In that regard, in the context of an application to the European Chemicals Agency (ECHA) for registration of a certain chemical substance, recital 11 of Regulation No 340/2008 states that the submission of false information should be discouraged by the imposition of an administrative charge by the [ECHA] and a deterrent fine by the Member States, if appropriate. It is clear from that recital that the imposition of an administrative charge contributes to the objective of discouraging the transmission of false information by undertakings. However, it is also clear from that recital that the administrative charge cannot be treated as a fine.

An administrative charge more than 17 times greater than the amount of the fee which the undertaking had to pay for registration of the substance concerned and 28 times greater than the amount of the fee which could have been avoided by reason of the false declaration by that undertaking is manifestly disproportionate compared to the objective pursued by the legislation.

(see paras 33, 34, 36, 38)
Judgment of the General Court (Third Chamber) of 4 February 2015 — El Corte Inglés v OHIM — Apro Tech (APRO)

(Case T‑372/12)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark APRO — Earlier national figurative mark B-PRO by Boomerang, earlier Community word mark PRO MOUNTAIN and applications for earlier Community figurative and word marks B-PRO by Boomerang and PRO OUTDOOR — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. 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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 16, 17, 42)

2. 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 — Figurative mark APRO — Figurative marks B-PRO by Boomerang and word marks PRO MOUNTAIN and PRO OUTDOOR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 35, 37, 40, 41, 45-49)

3. 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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 29)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 May 2012 (Case R 196/2011-2), relating to opposition proceedings between El Corte Inglés, SA and Apro Tech Co. Ltd.

Operative part

The Court:

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

Slovenia v Commission

(Case T‑507/12)

‛State aid — Manufacture of leisure equipment — Restructuring aid — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Obligation to state reasons — Whether imputable to the State — Private investor test’

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Decision on aid for restructuring firms in difficulty — Need to set out the facts and legal considerations of essential importance in the scheme of the decision — No requirement for a specific statement of reasons for each element raised by the persons concerned (Arts 107(1) TFEU and 296 TFEU) (see paras 23-25, 37)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Correction of an error of reasoning during the proceedings before the Court — Not permissible (Art. 296 TFEU) (see para. 53)

3. State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Automatic imputability to the State of the aid measure — Exclusion — Set of indicators to be taken into consideration (Art. 107(1) TFEU) (see paras 64-72, 76, 77, 93, 102, 107, 109, 169)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision in line with previous decisions — Need for an express statement of reasons only where the decision goes further than the earlier practice (Art. 296 TFEU) (see para. 133)

5. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits (Art. 107(1) TFEU) (see paras 190, 191, 220, 221, 224)

Re:

APPLICATION for annulment of Commission Decision 2014/273/EU of 19 September 2012 on the measures SA.26379 (C 13/10) (ex NN 17/10) implemented by Slovenia in favour of Elan d.o.o. (OJ 2014 L 144, p. 1).

Operative part

The Court:

1. Dismisses the action;
44

Although the applicant criticises the Board of Appeal for not having submitted any specific evidence in support of its assertion, that argument is wanting. In this regard, it is clear from the contested decision that the Board of Appeal examined the examples of turnbuckles produced by the applicants’ competitors and noted that they merely enabled it to be established that the clamps ‘could be conceived differently as regards function or aesthetics’, but that ‘these product variations’ did not result in a finding that they performed a ‘trade mark function in terms of their overall impression’ (paragraph 17 of the contested decision). The Board of Appeal was right to indicate to the applicant that it was not sufficient that the public be able to recognise differences between the various turnbuckles, which is in fact within the capabilities of a specialised public such as in this case, but that the public must be able to perceive the turnbuckle presented by the applicant as ’so different that [it] recognises the turnbuckle as an indication of origin’ (paragraph 18 of the contested decision). As the Board of Appeal rightly pointed out, the differences in the turnbuckle in question, identifiable though they certainly are, appear however to be simple production variants of turnbuckles. Those characteristics are not therefore such as to individualise the product in question or to indicate, in and of themselves, a particular commercial origin.
10

The Board of Appeal stated, in essence, first, in paragraph 37 of the contested decision, that the chequerboard pattern, as represented in the contested trade mark, was a basic and banal feature composed of very simple elements and that it was well-known that that feature had been commonly used with a decorative purpose in relation to various goods, including those falling within Class 18. The Board of Appeal went on to hold, in paragraphs 41 and 42 of the contested decision, that the contested trade mark, in the absence of features capable of distinguishing it from other representations of chequerboards, was not capable of fulfilling the essential ‘identification’ or ‘origin’ function of a trade mark. Furthermore, in paragraphs 43 and 47 of that decision, the Board of Appeal considered that the weft and warp structure of the contested trade mark did not constitute a substantial feature of that trade mark and did not give it a distinctive character. Moreover, according to paragraph 46 of the contested decision, the fact that the weft and warp structure of that trade mark had been copied does not demonstrate that it acted as an indication of commercial origin for the relevant public. The same was true, according to paragraph 48 of the contested decision, of the specific combination of colours, namely brown and beige. The Board of Appeal therefore found, in paragraph 49 of the contested decision, that the contested trade mark was very simple and contained no element capable of individualising it in such a way that it would not appear as a common and basic chequerboard pattern. It added, in paragraph 50 of the contested decision, that signs such as the contested trade mark were typically used as supplementary signs which coexisted beside the manufacturer’s house mark and, therefore, the Board of Appeal concluded, in paragraph 51 of the contested decision, that that trade mark was devoid of any distinctive character. The Board of Appeal also took the view, in paragraph 55 of the contested decision, that the documents produced by the proprietor of the contested trade mark did not demonstrate that the relevant public would be in the habit of making an assumption on the commercial origin of the goods at hand based on patterns. Lastly, the Board of Appeal considered, in paragraphs 73 to 75 of the contested decision, that, on the basis of the evidence provided by the applicant, it had not been established that the contested trade mark had acquired distinctive character through the use which had been made of it in a substantial part of the relevant territory, namely in Denmark, Portugal, Finland and Sweden, either at its filing date or after its registration.