ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fifth Chamber) of 28 April 2021 –

Nosio v EUIPO – Tros del Beto (ACCUSÌ)

(Case T‑300/20)

(EU trade mark – Opposition proceedings – Application for the EU word mark ACCUSÌ – Earlier EU word mark ACÚSTIC – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Need to determine that question, once raised by the applicant before the decision on the opposition (Council Regulation No 207/2009, Arts 15(1) and 42(2)) (see paras 20, 21, 24)

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 – Word marks ACCUSÌ and ACÚSTIC (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 30, 36, 50-52, 55-62)

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 of the marks concerned – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 32, 40-42)

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 – Taking into account of the intrinsic characteristics of the signs or the conditions in which the goods or services are marketed (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 53)

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 – Likelihood of confusion with the earlier mark – Similarity of the marks concerned – Whether conceptual differences may neutralise visual or aural similarities – Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 54)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 13 March 2020 (Case R 871/2019-1), relating to opposition proceedings between Tros del Belo and Nosio.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 21 April 2021 –

Lee v EUIPO (Table knives, forks and spoons)

(Case T‑382/20)

(Community design – Application for a Community design representing table knives, forks and spoons – Lack of priority claim – Application for restitutio in integrum – Article 67(1) and (2) Regulation (EC) No 6/2002 – Duty of due care)

1. Community designs – Procedural provisions – Restitutio in integrum – Conditions – Due care required by the circumstances – Delegation of administrative tasks relating to renewal of a design (Council Regulation No 6/2002, Art. 67(1)) (see paras 11, 12, 38)

2. Community designs – Procedural provisions – Restitutio in integrum – Conditions – Due care required by the circumstances – Exceptional events, which cannot therefore be predicted (Council Regulation No 6/2002, Art. 67(1)) (see paras 13, 14, 35)

1. Community designs – Procedural provisions – Restitutio in integrum – Conditions – Due care required by the circumstances – Exceptional events, which cannot therefore be predicted – Human error in recording information – Not included (Council Regulation No 6/2002, Art. 67(1)) (see paras 28, 30)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 8 April 2020 (Case R 2559/2019-3), relating to an application for restitutio in integrum.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 30 June 2021 –

Zoom v EUIPO – Facetec (ZOOM)

(Case T‑204/20)

(EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark ZOOM – Earlier EU figurative and word marks ZOOM – 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))

1. 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 – Precluded (Council Regulation No 207/2009, Art. 65) (see para. 21)

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 – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 29, 72-74, 85)

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 – 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 para. 35)

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 – Word mark ZOOM – Figurative and word marks ZOOM (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 62, 64, 65, 80, 90, 91)

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 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 40, 41)

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 – Similarity of the marks concerned – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 66, 83)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 7 February 2020 (Case R 507/2019 1) relating to opposition proceedings between Zoom KK and Facetec.

Operative part

The Court:

1. Dismisses the action;
2.

EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Intention of the applicant (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 33, 42, 54, 57)
European Parliament – Rules on costs and indemnities of MEPs – Parliamentary assistance allowances – Check relating to the use of parliamentary assistance expenses – Burden of proof

(Decision of the Bureau of the European Parliament concerning implementing measures for the Statute of Members of the European Parliament, Arts 33(1) and (2), and 68)

(see paras 41-50, 60, 61)
Judgment of the General Court (Tenth Chamber) of 30 June 2021 –

Ceramica Flaminia v EUIPO – Ceramica Cielo (goclean)

(Case T‑290/20)

(EU trade mark – Invalidity proceedings – EU figurative mark goclean – Absolute ground for refusal – No distinctive character – Article 52(1)(a) and Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(a) and Article 7(1)(b) of Regulation (EU) 2017/1001) – Examination of the facts of EUIPO’s own motion – Article 95(1) of Regulation 2017/1001 – No distinctive character acquired through use – Article 52(2) of Regulation No 207/2009 (now Article 59(2) of Regulation 2017/1001))

1. 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 – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 18)

2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Assessment of distinctive character – Criteria (Council Regulation No 207/2009, Arts 52(1)(a) and 7(1)(b)) (see paras 26-28, 45)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Marks consisting of advertising slogans – Distinctive character – Criteria for assessment (Council Regulation No 207/2009, Arts 52(1)(a) and 7(1)(b)) (see paras 29-32)

4. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Figurative mark goclean (Council Regulation No 207/2009, Arts 52(1)(a) and 7(1)(b)) (see paras 37-44, 46)

5. EU trade mark – Decisions of EUIPO – 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, Art. 52(1)(a)) (see para. 50)

6. EU trade mark – Procedural provisions – Examination of the facts of EUIPO’s own motion – Scope – Obligation to prove matters within common knowledge (European Parliament and Council Regulation 2017/1001, Art. 95(1)) (see paras 55, 56)

7. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Burden of proof (Council Regulation No 207/2009, Arts 52(2) and 7(3)) (see para. 64)

8. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Criteria for assessment – Taking into account the market share held by the mark – Whether permissible (Council Regulation No 207/2009, Arts 52(2) and 7(3)) (see paras 65-68)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 16 March 2020 (Case R 991/2018-2), relating to invalidity proceedings between Ceramica Cielo and Ceramica Flaminia.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Applicant’s knowledge that a third party is using an identical or similar sign – Intention of the applicant

(Council Regulation No 207/2009, Arts 8(2) and (4) and 52(1)(b))

(see paras 16, 17, 79)
8.

Acts of the institutions – Statement of reasons – Obligation – Scope – Decision, in the procedure for the award of a public service contract, not to accept a tender – Assessment having regard to the information at the applicant’s disposal at the time the action was brought – Information provided to the applicant not clearly showing the reasons for rejecting the tender and not sufficiently explaining the characteristics and advantages of the tender accepted – Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer – No obligation on the awarding authority to provide a detailed comparative analysis of the tender accepted and the tender of the unsuccessful tenderer – Sufficient statement of reasons (Art. 296 TFEU; European Parliament and Council Regulation 2018/1046, Art. 170(2) and (3)(a) and Annex I, point 31.1) (see paras 108-110)
Judicial proceedings – Application initiating proceedings – Formal requirements – Identification of the subject matter of the dispute – Summary of the pleas in law on which the application is based – Application not sufficiently clear and precise – Inadmissibility

(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. 31)
Judgment of the General Court (Ninth Chamber) of 13 October 2021 –

M. I. Industries v EUIPO – Natural Instinct (INSTINCT)

(Case T‑1/20)

(EU trade mark – Revocation proceedings – EU word mark INSTINCT – No genuine use of the trade mark – Extent of use – Overall assessment of the evidence – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001))

1. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Meaning – Criteria for assessment (Council Regulation No 207/2009, Arts 15(1) and 51(1)(a)) (see paras 27-32, 34, 35, 83)

2. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Meaning – Determination of a minimal quantitative use threshold – Precluded (Council Regulation No 207/2009, Arts 15(1) and 51(1)(a)) (see para. 33)

3. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Use during a five year period – Consideration of evidence concerning use outside of that period – Conditions (Council Regulation No 207/2009, Arts 15(1) and 51(1)(a)) (see paras 44, 45, 49)

4. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word mark INSTINCT (Council Regulation No 207/2009, Arts 15(1) and 51(1)(a)) (see paras 51, 56, 59, 67, 90, 93)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 28 October 2019 (Case R 178/2019-5), relating to revocation proceedings between Natural Instinct and M.I. Industries.

Operative part

The Court:

1. Dismisses the action;
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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 19)
Judgment of the General Court (Sixth Chamber) of 10 November 2021 –

Stada Arzneimittel v EUIPO – Pfizer (RUXXIMLA)

(Case T‑239/20)

(EU trade mark – Opposition proceedings – Application for the EU word mark RUXXIMLA – Earlier EU word mark RUXIMERA – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 22, 23, 52)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 24, 57)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 27)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 37)

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 – Likelihood of confusion with the earlier mark – Word marks RUXXIMLA and RUXIMERA (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 53-56, 58)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 13 February 2020 (Case R 1879/2019-4), relating to opposition proceedings between Pfizer and Stada Arzneimittel.

Operative part

The Court:

1. Dismisses the action;
Community designs – Grounds for invalidity – No individual character – Design not giving the informed user a different overall impression from that produced by the earlier design – Criteria for assessment

(Council Regulation No 6/2002, Recital 14 and Arts 6, 7 and 25(1)(b))

(see paras 15-17)
Judgment of the General Court (Eighth Chamber) of 15 December 2021 –

FZ and Others v Commission

(Case T‑618/20)

(Civil Service – Officials – Remuneration – Commission staff posted to a third country – Annual and interim update of correction coefficients – Manifest error of assessment)

1. Officials – Remuneration – Weightings – Fixing – Interim update decided by the Commission – Aim (Staff Regulations of Officials, Arts 64 and 65 and Annex XI, Arts 4 to 7) (see paras 49, 50, 59)

2. Officials – Remuneration – Weightings – Fixing – Discretion of the institutions – Judicial review – Limits – Manifest error of assessment – Burden of proof (Staff Regulations of Officials, Arts 64 and 65 and Annex XI) (see paras 51-53, 57, 60, 74, 77)

3. Officials – Remuneration – Weightings – Fixing – Criteria – Effect of the increase in the correction coefficients applied to the salaries of staff of UN organisations – None (Staff Regulations of Officials, Art. 64) (see para. 65)

Re:

Application under Article 270 TFEU for annulment of the applicants’ salary statements for the month of December 2019 in so far as they apply, for the first time, the correction coefficients fixed, with retroactive effect, on 1 April and 1 July 2019.

Operative part

The Court:

1. Dismisses the action;
Officials – Rights and obligations – Obligation of independence and integrity – Requirement of impartiality – Meaning – Director of an agency took a decision on a claim for compensation of an agent after having been a witness in investigative procedures and judicial proceedings concerning that agent – No infringement

(Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Art. 41(11); Staff Regulations of Officials, Art. 11a)

(see paras 53-55)
Officials – Competitions – Competition based on qualifications and tests – Conditions for admission – Diplomas produced or professional experience attested – Discretion of the selection board – Determination of assessment criteria – Whether permissible – Limits – Adherence to the notice of competition – Adoption of an additional criterion not mentioned in the notice of competition – Not permissible

(Staff Regulations of Officials, Annex III, Arts 1(1) and 5, first and third paras)

(see paras 24, 34-36, 50-53)
EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Concept – Criteria for assessment – Company name or trade name

(Council Regulation No 207/2009, Recital 10, Arts 15(1), 51(1)(a) and 78(1)(f); Commission Regulation No 2868/95, Art. 1, Rule 22(3) and (4))

(see paras 22, 23, 63-65, 75, 76)
3.

EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – 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, Arts 7(1)(c) and 52(1)(a)) (see para. 24)
1.

Officials – Psychological harassment – Concept – Conduct intended to discredit the person concerned or to impair his or her working conditions or having that effect – Abusive nature of the conduct – Criteria for assessment – Examination of a number of events taken as a whole (Staff Regulations of Officials, Art. 12a(3)) (see paras 60-64)
Culture – EU Programmes – MEDIA Programme – Applications for financing for the distribution of films – Processing by the European Education and Culture Executive Agency (EACEA) – Concept of European company – Scope – Limits

(European Parliament and Council Regulation No 1295/2013, Art. 22(2); Council Regulations No 58/2003 and No 139/2004)

(see paras 48-51, 61, 62, 70, 72, 93)
EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the legality of decisions of the Boards of Appeal – Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies – Precluded

(Rules of Procedure of the General Court, Art. 188; European Parliament and Council Regulation 2017/1001, Arts 72 and 95)

(see para. 34)
60

Similarly, several aspects of the Air France decision make it apparent that the Air France-KLM holding company assumed contractual obligations and rights in relation to the aid measure which was the subject of that decision. Accordingly, by way of example, paragraph 15 of that decision states that the French Republic, ‘the Air France-KLM group’ and the pool of banks concerned were to enter into an agreement relating to the State guarantee, before its initial grant, which would set out the specific conditions for applying that guarantee. According to paragraph 16 of that decision, the shareholder loan was also to be the subject of a loan agreement concluded between ‘the Air France-KLM group’ and the Agence des participations de l’État (the French Government shareholding agency), which manages the State’s financial shareholdings. Accordingly, the financing at issue ‘will be contracted with Air France-KLM’, whereas, according to paragraph 21 of the Air France decision, the proceeds of that financing will be ‘made available to Air France through mirror current accounts set up between the Air France-KLM holding company and its subsidiary Air France’. It thus appears that the contracts relating to the financing at issue will be concluded with the Air France-KLM holding company, and not with Air France. It seems, in addition, that that financing will be paid first into the accounts of the Air France-KLM holding company before being transferred, ‘through mirror current accounts’ the nature and function of which are not, however, made clear, to the Air France subsidiary. Furthermore, it is apparent from paragraphs 26 and 31 of the Air France decision that the duration of the loan guaranteed by the State and that of the State guarantee may be extended ‘at the option of the Air France-KLM group’. As regards the shareholder loan, it will be granted, according to paragraph 44 of that same decision, subject to commitments ‘which will be entered into by the Air France-KLM group’.