ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Seventh Chamber) of 19 June 2018 –

Erwin Müller v EUIPO — Novus Tablet Technology Finland (NOVUS)

(Case T‑89/17)

(EU trade mark — Opposition proceedings — Application for EU word mark NOVUS — Earlier EU word and figurative marks NOVUS and novus — Relative ground for refusal — Similarity of the goods — Article 8(1)(a) and (b) of Regulation No 207/2009 (now Article 8(1)(a) and (b) of Regulation (EU) 2017/1001) — Evidence presented for the first time before the General Court)

1. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal—Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies—Not included (Council Regulation No 207/2009, Art. 65) (see para. 15)

2. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Opposition proceedings—Examination restricted to the submissions of the parties—Well-known facts taken into account (Council Regulation No 207/2009, Art. 76(1)) (see paras 16, 30)

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 24)

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 between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 25)

5. EU trade mark—Lodging of application for EU trade mark—Identification of the goods or services concerned by the trade mark—Use of the general indications in the headings of the classes of the Nice classification—Scope (Commission Regulation No 2868/95, Art. 1, Rules 2(2) and 4) (see paras 32, 33)

6. 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 NOVUS—Word and figurative marks NOVUS and novus (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 49, 55-59)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 November 2016 (Case R 2413/2015-4), relating to opposition proceedings between Erwin Müller and Novus Tablet Technology Finland.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 November 2016 (Case R 2413/2015-4) in so far as it concerns the ‘special holders for mobile phones’ referred to in the trade mark application;

2. Dismisses the action as to the remainder;
Judgment of the General Court (Fifth Chamber) of 13 September 2018 –

Apple v EUIPO — Apo International (apo)

(Case T‑104/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark apo — Earlier EU figurative mark representing an apple and earlier EU word marks APPLE — Relative grounds for refusal — Similarity of the signs — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and (5) of Regulation (EU) 2017/1001))

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—Similarity of the marks concerned—Degree of similarity required (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see paras 18-20)

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—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 23)

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—Figurative mark apo—Figurative mark representing an apple and word marks APPLE (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see paras 25, 35, 41, 47, 50-53, 63, 64, 75, 76)

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—Visual similarity between a figurative mark and a word mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 41)

5. 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—Figurative marks—Phonetic comparison (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 58)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 1 December 2016 (Case R 698/2016-4), relating to opposition proceedings between Apple and Apo International.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 December 2016 (Case R 698/2016-4);
EU trade mark—Surrender, revocation and invalidity—Causes of revocation—Absence of genuine use of a trade mark—Proof of use of the earlier mark—Genuine use—Meaning—Criteria for assessment

(Council Regulation No 207/2009, Arts 15(1) and 51(1)(a); Commission Regulation No 2868/95, Art. 1, Rule 22(3))

(see paras 18-26, 58)
The public interest underlying the absolute ground for refusal laid down in Article 7(1)(f) of Regulation No 207/2009 on the European Union trade mark is to ensure that signs which, when used in the European Union, would be contrary to public policy or to accepted principles of morality are not registered. The registration of a mark as an EU mark is caught by that absolute ground for refusal if, inter alia, it is deeply offensive.

The assessment of the existence of that ground for refusal cannot be based on the perception of the part of the relevant public that does not find anything shocking, nor can it be based on the perception of the part of the public that may be very easily offended, but must be based on the standard of a reasonable person with average sensitivity and tolerance thresholds.

Moreover, the relevant public cannot be limited, for the purpose of the examination of that ground for refusal, to the public to which the goods and services in respect of which registration is sought are directly addressed. Consideration must be given to the fact that the signs caught by that ground for refusal will shock not only the public to which the goods and services designated by the sign are addressed, but also other persons who, without being concerned by those goods and services, will encounter that sign incidentally in their day-to-day lives.

It must also be borne in mind that the relevant public within the European Union is, by definition, within a Member State and that the signs likely to be perceived as being contrary to public policy or to accepted principles of morality are not the same in all Member States, inter alia for linguistic, historic, social and cultural reasons.

It follows that, in order to apply that absolute ground for refusal, it is necessary to take account both of the circumstances common to all Member States of the European Union and of the particular circumstances of individual Member States which are likely to influence the perception of the relevant public within those States.

When a sign is particularly shocking or offensive, it must be regarded as being contrary to public policy or to accepted principles of morality, irrespective of the goods and services for which it is registered. Moreover, it follows from a combined reading of the various subparagraphs of Article 7(1) of Regulation No 207/2009 that they refer to the intrinsic qualities of the mark in question and not to circumstances relating to the conduct of the person applying for the trade mark.

(see paras 25-29, 40)
Judgment of the General Court (Third Chamber) of 25 September 2018 –

Novartis v EUIPO — Chiesi Farmaceutici (AKANTO)

(Case T‑182/17)

(EU trade mark — Opposition proceedings — Application for EU word mark AKANTO — Earlier EU word mark KANTOS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

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 16, 17, 60)

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—Assessment of the likelihood of confusion—Determination of the relevant public—Attention level of the public—Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19, 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 marks AKANTO and KANTOS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 30-35, 41, 42, 51, 64-67)

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 between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 23)

5. 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 para. 26)

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 (Council Regulation No 207/2009) (see paras 56-58)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 531/2016-1) relating to opposition proceedings between Chiesi Farmaceutici and Novartis.

Operative part

The Court:

1. Dismisses the action;
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Descriptive character of a sign—Circumstance necessarily implying absence of distinctive character of the sign

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

(see para. 49)
Judgment of the General Court (Ninth Chamber) of 15 November 2018 –

Haufe-Lexware v EUIPO — Le Shi Holdings (Beijing) (Leshare)

(Case T‑546/17)

(EU trade mark — Opposition proceedings — Application for the EU word mark Leshare — Earlier international word mark LEXWARE — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Similarity of the signs)

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, 68)

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 — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 28)

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 — TWord marks Leshare and LEXWARE (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 48-50, 52-56, 58-62, 64, 70-73)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43-45)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 15 June 2017 (Case R 1691/2016-4) relating to opposition proceedings between Haufe-Lexware and Le Shi Holdings (Beijing).

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Examination of the grounds for refusal having regard 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, first sentence)

(see paras 37-39)
Approximation of laws — Classification, packaging and labelling of substances and mixtures — Regulation No 1272/2008 — Adaption to scientific and technical progress — Classification of anthraquinone as a carcinogenic substance — Discretion of the EU authorities — Scope — Judicial review — Limits

(European Parliament and Council Regulation No 1272/2008, Arts 36 and 37)

(see paras 23-25, 44, 57, 70)
Where an action for annulment is brought by non-privileged applicants against a measure that has not been addressed to them, both the requirement that the binding legal effects of the contested measure be capable of affecting the interests of the applicant by bringing about a distinct change in his legal position and the condition that a natural or legal person must be directly concerned by the act forming the subject matter of the proceedings, as laid down in the fourth paragraph of Article 263 TFEU, require that the contested decision in this action directly affects the legal situation of the applicants.

An action brought by nationals of a Member State against a decision taken by the Council on the basis of the third sentence of Article 50(2) TEU, in combination with Article 218(3) TFEU authorising the Commission to open negotiations with that Member State for an agreement setting out the arrangements for that Member State’s withdrawal from the European Union and from Euratom must be dismissed as being unfounded. Such a decision does not affect the rights of the applicants, who have the same rights after the contested decision as before. As regards the rights of the citizens of the Member State concerned in the EU 27 from the date of withdrawal, that decision merely constitutes a preparatory act for any final agreement, which would be subject to a subsequent decision of the Council, acting by qualified majority, after obtaining the consent of the European Parliament. Annulment of the contested decision would thus have no impact on the legal situation of the citizens of the Member State concerned, including those who live in another EU Member State and did not have the right to vote in the referendum on whether or not that Member State would remain in the European Union and the general elections in that State. It would lead neither to annulment of the notification of intention to withdraw nor to suspension of the two-year time limit provided for by Article 50(3) TEU. The applicants’ rights would remain unchanged.

In that respect, although it is true that the applicants’ legal situation, particularly as regards their status as EU citizens, is likely to be affected when the Member State concerned withdraws from the EU, whether or not an agreement is concluded, such potential effect on their rights — the nature and extent of which cannot, however, be known at this time — does not result from the contested decision. In particular, if the Council was wrong not to make use of the possibility, provided for in Article 218(11) TFEU, of obtaining the opinion of the Court as to the compatibility of the envisaged agreement with the Treaties, or infringed the principle of sincere cooperation, that fact cannot have the effect of setting aside the conditions governing admissibility expressly provided for in Article 263 TFEU.

(see paras 31, 33, 35, 45-47, 69, 78)
Judgment of the General Court (First Chamber) of 13 November 2018 –

Poland v Commission

(Case T‑241/17)

(EAGF and EAFRD — Expenditure excluded from financing — Implementing Regulation (EU) No 585/2011 — Temporary exceptional support measures for the fruit and vegetable sector following a deadly enterohaemorrhagic Escherichia coli (E. coli) outbreak — Non-harvesting operations — Extent of the compensation in favour of producers who performed such operations — Expenditure incurred by Poland — Obligation to state reasons)

1. Agriculture — Common organisation of the markets — Fruit and vegetables — Temporary exceptional support measures following a deadly enterohaemorrhagic Escherichia coli (E. coli) outbreak — Compensation in favour of producers who performed non-harvesting operations — Calculation — Determination on the basis of the loss of harvest relating to the period comprising 26 May 2011 to 30 June 2011 (Council Regulation No 1234/2007, Art. 191; Commission Regulations No 1580/2007, Art. 85(1), No 543/2011, Art. 84(1), and No 585/2011, Art. 1(1)) (see paras 58, 59, 67, 68, 75)

2. EU law — Interpretation — Texts in several languages — Differences between the various language versions — Account to be taken of the overall scheme and purpose of the legislation in question (see paras 60, 63)

3. Agriculture — EAGF and EAFRD financing — Principles — Whether expenses comply with EU rules — Restrictive interpretation — Requirement to ensure equal treatment of economic operators (Commission Regulation No 585/2011) (see para. 64)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case (Art. 296, second para. TFEU) (see para. 84)

5. Actions for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality (Arts 263 TFEU and 296 TFEU) (see para. 86)

Re:

Application based on Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2017/264 of 14 February 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 39, p. 12), in so far as it excludes from European Union financing expenditure in the amount of EUR 4 438 056.66 incurred by the payment agency accredited by the Republic of Poland.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for submissions made in support of a plea

(Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 24)
The concepts of ‘reputation’ and ‘enhanced distinctiveness’ are closely related. The reputation of an earlier mark may contribute to its enhanced distinctiveness and, therefore, increase the likelihood of confusion between that mark and a mark applied for. It is apparent from the case-law that there is a difference of emphasis between the reputation and the enhanced distinctiveness of a trade mark, more than a difference in nature. First, the existence of an unusually high level of distinctive character, as a result of the public’s recognition of a mark on the market, necessarily presupposes that at least a significant part of the relevant public is familiar with it, without its necessarily having to have a reputation within the meaning of Article 8(5) of Regulation No 207/2009 on the European Union trade mark. Second, the relevant factors for assessing the acquisition of enhanced distinctiveness by use are the same as those relevant for assessing reputation, namely, in particular, the market share held by the mark, how intensive, geographically widespread and long-standing use of the mark has been, and the amount invested by the undertaking in its promotion. It follows that, for the purposes of assessing whether the earlier mark has enhanced distinctiveness, the Board of Appeal may rely on the elements put forward by the proprietor of that mark in order to establish its reputation.

It is true that a distinction should be made between the assessment of the distinctive character of an element of a composite mark, which relates to the ability of that element to dominate the overall impression produced by the mark, and the analysis of the distinctive character of the earlier mark, which is linked to the scope of the protection afforded to such a mark. The distinctive character of an element of a composite mark is examined at the stage of assessing the similarity of the signs and the degree of distinctive character of the earlier mark is one of the elements to be taken into consideration as part of the global assessment of the likelihood of confusion. Furthermore, where a mark has distinctive character, that distinctive character must be ascribed to that mark as a whole and not automatically to all the elements of which it is composed.

However, it still cannot be ruled out that the enhanced distinctiveness of a mark may be taken into consideration for the purposes of establishing, by means of a detailed analysis, the distinctive character of one of the elements of that mark. The enhanced distinctiveness and especially the reputation of a sign can play a role in determining the distinctive character of an element forming part of the sign at issue, in so far as the extensive awareness of the link established by that sign between the goods or services covered and a specific undertaking may influence the perception of the connections between the various elements making up the sign at issue, in particular the more distinctive character of some rather than others.

(see paras 51, 52)