ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 16 May 2013 — Restoin v OHIM (EQUIPMENT)

(Case T-356/11)

‛Community trade mark — Application for Community word mark EQUIPMENT — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the products or services covered by the application for registration — Duty to state reasons for the refusal to register — Scope (Council Regulation No 207/2009, Arts 7(1), and 75) (see para. 18)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 37, 38)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark EQUIPMENT (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 45, 46)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Separate examination of the various grounds for refusal — Overlap between the scope of the grounds for refusal set out in subparagraphs (b) to (d) of Article 7(1) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 7(1)) (see para. 53)

5. Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — Account to be taken only of Community legislation — Earlier registration of the mark in certain Member States or third countries — Decisions not binding Community bodies (Council Regulation No 207/2009) (see para. 74)

Re:

ACTION brought against the decision of the Fourth Chamber of the Board of Appeal of OHIM of 14 April 2011 (Case R 1430/2010-4), concerning an application for registration of the word mark EQUIPMENT as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 16 October 2013 — TF1 v Commission

(Case T-275/11)

‛State aid — Public service broadcasting — Aid proposed by the French authorities for France Télévisions — Annual budgetary grant — Decision declaring the aid compatible with the internal market — Article 106(2) TFEU — Strict interdependence of a tax and an aid measure’

1. State aid — Provisions of the Treaty — Scope — Taxes constituting the method of financing an aid measure — No strict interdependence between the tax and the financing of the aid concerned — Exclusion (Arts 107 TFEU and 108 TFEU) (see paras 41-44, 47, 57, 69, 81, 86)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 94-99, 113)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid (Art. 296 TFEU) (see paras 104-109)

4. Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Obligations of the applicant (Rules of Procedure of the General Court, Art. 64(3)(d), and (4)) (see paras 115-120)

5. State aid — Concept — Measures designed to offset the cost of public service tasks assumed by an undertaking — Not included — Conditions set out in the Altmark judgment (Arts 106(2) TFEU and 107(1) TFEU) (see paras 124-128)

6. State aid — Concept — Measures designed to offset the cost of public service tasks assumed by an undertaking — Distinction between the Altmark test, designed to determine the existence of aid, and the test under Article 106(2) TFEU, enabling the compatibility of aid with the internal market to be established (Arts 106(2) TFEU and 107(1) TFEU) (see para. 129)

7. Competition — Undertakings entrusted with the operation of services of general economic interest — Subject to the treaty rules — Assessment of the compatibility of State financing with the common market — Assessment having regard to the cost borne by the undertaking in providing the service, independently of its economic efficiency (Art. 106(2) TFEU) (see paras 130-134, 138, 139, 153)

Re:

APPLICATION for annulment of Commission Decision 2011/140/EU of 20 July 2010 on State Aid C 27/09 (ex N 34/B/09) Budgetary grant for France Télévisions which the French Republic plans to implement in favour of France Télévisions (OJ 2011 L 59, p. 44).

Operative part

The Court:

1. Dismisses the action;

2. Orders Télévision française 1 (TF1) to bear its own costs and to pay those incurred by the European Commission and by France Télévisions;
10.

Actions for annulment — Judgment annulling a measure — Effects — Partial annulment of a regulation and a decision on the adoption of restrictive measures against Iran — Annulment of regulation to take effect only as from the date of expiry of the period for bringing an appeal or from the date of dismissal of the appeal — Application of that period to when the annulment of the decision is to take effect (Arts 264, second para., TFEU and 280 TFEU; Statute of the Court of Justice, Art. 60, second para.; Council Decision 2010/413/CFSP, Annex II; Council Regulation No 267/2012, Annex IX) (see paras 127, 128)
Keywords

Subject of the case

Operative part



Keywords

Community 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 (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 13)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the products 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) (see paras 14, 15)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 29)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Lack of distinctive character of a sign — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 36)

5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark Leistung aus Leidenschaft (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 41-47)

6. Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — Account to be taken only of Community legislation — Earlier registration of the mark in certain Member States or third countries — Decisions not binding Community bodies (see para. 53)

7. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see paras 61-63)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 August 2011 (Case R 188/2011‑4) concerning an application for registration of word sign Leistung aus Leidenschaft as a Community trade mark.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Deutsche Bank AG to pay the costs.
Keywords

Summary



Keywords

1. Actions for annulment — Jurisdiction of the EU judicature — Review of legality of the contested measure — Criteria — Considerations of fairness or appropriateness — Not included

(Art. 263 TFEU)

2. State aid — Existing aid and new aid — Classification as new aid — Extension of an existing aid scheme to new beneficiaries — Included

(Arts 107(1) TFEU and 108(3) TFEU)

Summary

1. Where an action for the annulment of a measure under Article 263 TFEU is brought before the Courts of the European Union, their jurisdiction is limited to reviewing the legality of the contested measure. The consequence of a finding of illegality on one of the grounds stated in the second paragraph of Article 263 TFEU is that the Court must annul the measure in question, in its entirety or in part, depending on the case and, in particular, the nature and extent of the illegality. The Court has no discretion as regards such annulment and no power to alter the scope of the annulment by reference to considerations of fairness or appropriateness.

(see paras 44, 45)

2. See the text of the decision.

(see paras 112-116)
Judgment of the General Court (Second Chamber) of 17 March 2015 — Spa Monopole v OHIM — South Pacific Management (Manea Spa)

(Case T-611/11)

‛Community trade mark — Opposition proceedings — Application for the Community word mark Manea Spa — Earlier Benelux word and figurative marks SPA and earlier Benelux word mark LES THERMES DE SPA — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009’

1. Procedure — Time-limits — Period allowed for distance — Application to the introduction of an action against an OHIM decision (Council Regulation No 207/2009, Art. 65(5); Rules of Procedure of the General Court, Art. 102(2)) (see para. 23)

2. Community trade mark — Appeals procedure — Action before the EU judicature — Modification of the terms of the dispute as brought before the Board of Appeal — Not permissible (Rules of Procedure of the General Court, Art. 135(4)) (see para. 32)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 38-42, 67, 68)

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 — 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 45-47)

5. 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 — Word mark Manea Spa — Word and figurative marks SPA and word mark LES THERMES DE SPA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53, 54, 64-66, 86-90)

6. 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 55, 56)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 8 September 2011 (Joined Cases R 1176/2010‑1 and R 1886/2010‑1), relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and South Pacific Management.

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 8 September 2011 (Joined Cases R 1176/2010‑1 and R 1886/2010‑1);
A decision which (i) concludes that an earlier mark has been put to genuine use within the meaning of Article 42(2) of Regulation No 207/2009 and (ii) does not make clear to what extent the evidence produced supports that conclusion in relation to each of the goods or services or each of the categories of goods or services for which that use has been accepted is vitiated by inadequate reasoning. That provision the Board of Appeal of OHIM to establish a link between the goods or services for which it considers genuine use to have been demonstrated and all or a part of the goods and services in respect of which that mark is registered, in order to allow a subsequent assessment of a likelihood of confusion.

A lack of precision in that regard in an OHIM decision renders it impossible for a review to take place of the application by the Board of Appeal of the last sentence of Article 42(2) of Regulation No 207/2009. It follows from Article 42(2) and (3) of that regulation that, if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection in opposition proceedings only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong. On the other hand, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant subdivisions within the category concerned, then the proof of genuine use of the mark for those goods or services necessarily covers the entire category for the purposes of the opposition.

Accordingly, it is for the Board of Appeal to assess, where use is proved only in respect of a part of the goods or services in a category for which the earlier mark is registered and which is cited as justification for the opposition, whether that category includes independent subcategories covering the goods and services in respect of which use is demonstrated, so that it must be held that use has been proved only in respect of that subcategory of goods and services or, on the other hand, whether such subcategories are not possible.

(see paras 23-25)
The appointing authority’s duty to consider the comparative merits of officials who are eligible for promotion, as laid down in Article 45 of the Staff Regulations, is an expression of the principle of equal treatment of officials and their career prospects, the assessment of their merits being the decisive criterion. Article 45(1) provides that, when considering comparative merits, the appointing authority is to take account in particular of the reports on the officials, the use of languages in the execution of their duties other than the language for which they have produced evidence of thorough knowledge and, where appropriate, the level of responsibilities exercised by them. Article 45(1) gives the authority a certain amount of discretion as to the weight it gives to each of the three factors mentioned in considering comparative merits, subject nevertheless to the principle of equal treatment.

Where the merits of the officials eligible for promotion are equal, on the basis of the three factors set out in Article 45(1), the appointing authority has a secondary power to take other matters into consideration, such as their age, seniority in grade or length of service. Such matters may then be a decisive factor in the choice made.

(see paras 43-44)

See:

12 February 1992, T‑52/90 Volger v Parliament [1992] ECR II‑121, para. 24; Lopes v Court of Justice, paras 133 and 138; 5 March 1998, T‑221/96 Manzo-Tafaro v Commission [1998] ECR-SC I‑A‑115 and II‑307, para. 17; 27 April 1999, T‑283/97 Thinus v Commission [1999] ECR-SC I‑A‑69 and II‑353, paras 48 and 49; 18 September 2003, T‑241/02 Callebaut v Commission [2003] ECR-SC I‑A‑215 and II‑1061, para. 44; 10 June 2004, T‑330/03 Liakoura v Council [2004] ECR-SC I‑A‑191 and II‑859, para. 46
Judgment of the General Court (Sixth Chamber) of 29 March 2012 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

Community trade mark — International registration — Request for territorial extension of protection — Figurative mark 3D eXam — Absolute grounds for refusal — Descriptive character and lack of distinctive character — Article 7(1)(b) and (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 207/2009, Art. 7(1)(c)) (see paras 24-26, 28-31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 1 March 2011 (Case R 2361/2010-2) relating to a territorial extension to the European Union of the protection of the international registration of the figurative mark 3D eXam.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 22 May 2012 —

Asa v OHIM — Merck (FEMIFERAL)



(Case T-110/11)

Community trade mark — Opposition proceedings — Application for Community word mark FEMIFERAL — Earlier national word mark Feminatal and earlier national figurative mark feminatal — Relative ground for refusal — Similarity of the signs — Likelihood of confusion — 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 207/2009, Art. 8(1)(b)) (see paras 23, 24, 43‑51, 54)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 19 November 2010 (Case R 182/2010-1) relating to opposition proceedings between Merck sp. z o.o. and Asa sp. z o.o.

Operative part

The Court:

1. Dismisses the action;
12

By letter of 25 October 2011, the Commission stated that the legal basis for the contested decision was Article 266 TFEU. It also stated that it is not required to pay default interest, as the ‘Financial Regulation (FR) of 1977’ – applicable to the financial assistance at issue and as amended by Council Regulation (Euratom, ECSC, EEC) No 610/90 of 13 March 1990 amending the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1990 L 70, p. 1) – did not lay down any rules on the payment of interest by the Commission to beneficiaries. Likewise, Commission Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 laying down detailed rules for the implementation of certain provisions of the Financial Regulation of 21 December 1977 (OJ 1993 L 315, p. 1) had not entered into force until after the financial assistance agreement was signed and, in any event, Article 94(1) of that regulation applies only to requests for payment made by the Commission and not to requests made to the Commission (see also Title XIV and Article 92 of that regulation). Furthermore, Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1) and Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1) are not applicable to contracts signed before 1 January 2003, the date on which those regulations entered into force. It is nevertheless clear from the case-law that the Commission has an obligation to pay compensatory interest in accordance with a judgment annulling a measure. The Commission had therefore decided to pay interest, in accordance with the ECB and EMI interest rates, on each of the tranches of the total amount payable according to the calculation set out in the table appended to the letter. In that table, the Commission calculated interest on each of the tranches of the claim referred to in paragraph 3 above in the light of the ECB’s interest rate for its main refinancing operations, and up until 13 July 2011. In that regard, the Commission stated that, as there was no rule authorising the application of default interest, it was inappropriate to raise the interest rates by 3.5 percentage points. Lastly, the Commission stated that payment had been suspended pending IPK’s reply to its letter.
36

The Commission states the reasons for the acquisition ban in, in particular, recitals 309 to 313 of the contested decision, where the following is stated: ‘(309) A restructuring plan should clearly show that the aid has remained limited to the minimum necessary. Costs associated with the restructuring should not only be borne by the State but to a maximum extent also by those who invested in the bank. In other words, the bank and its capital holders should contribute to the restructuring as much as possible with their own resources. Restructuring aid should be limited to covering costs which are necessary for the restoration of viability. Accordingly, an undertaking should not be endowed with public resources which could be used to finance market-distorting activities not linked to the restructuring process like, for example, acquisitions … (310) The Restructuring Communication recalls that an acquisition ban is necessary to keep the aid limited to the minimum necessary. Point 23 of the Restructuring Communication mentions explicitly that “an undertaking should not be endowed with public resources which could be used to finance market-distorting activities not linked to the restructuring process. For example, acquisitions of shares in other undertakings or new investments cannot be financed through State aid unless this is essential for restoring an undertaking’s viability”. (311) The Restructuring Communication also links an acquisition ban to distortions of competition. In points 39 and 40, the Communication explains that “State aid must not be used to the detriment of competitors, which do not enjoy similar public support”, and that “Banks should not use state aid for the acquisition of competing businesses. This condition should apply for at least three years and may continue until the end of the restructuring period, depending on the scope, size and duration of the aid”. (312) In line with point 40 of the Restructuring Communication, the aid can only be declared compatible on the condition that [ABN Amro] strictly applies an acquisition ban in the three years following the date of the present Decision. The acquisition ban should be extended if the Dutch State continues to own more than 50% of [ABN Amro] after 3 years. However, the acquisition ban should not extend beyond 5 years. While part of the aid has already been redeemed, some measures … cannot be redeemed by the bank due to the form in which they were granted (i.e. not in the form of a hybrid debt instrument). The end of the State ownership is a proxy for estimating when the advantage derived from the aid ends. (313) The Commission observes that the December 2009 Restructuring Plan (completed with worst case financial projections on 23 March 2010) indicated already that [ABN Amro] has become a viable entity that should realise a decent return on equity and is even expected to realise decent profits in worse economic conditions. The updated November 2010 Restructuring Plan confirmed this analysis. That return to viability does not hinge on acquisitions. An acquisition ban therefore does not go against the return to viability.’