ddrg/super_eurlex huggingface dataset:
29

It must be pointed out in that regard, that Article 8(4) of Regulation No 207/2009 covers non-registered trade marks and any ‘[other] sign’ used in the course of trade. In that context, and in the absence of any indication to the contrary, the function of the use of the sign at issue may, in the light of the nature of that sign, lie not only in the identification by the relevant public of the commercial origin of the goods concerned, but also, inter alia, in the identification of their geographical origin and the special qualities inherent in them (see, to that effect, judgment in Anheuser-Busch v Budějovický Budvar, cited in paragraph 27 above, EU:C:2011:189, paragraph 147) or of the characteristics on which their reputation is based, which OHIM, moreover, observes in its written pleadings. The sign at issue, in the light of its nature, may thus be classified as a distinctive element if it serves to identify the goods or services of one undertaking in relation to those of another undertaking, but also, inter alia, if it serves to identify certain goods or services in relation to other similar goods or services. The approach applied by the Board of Appeal therefore effectively excludes signs which are used by a number of traders or which are used in association with trade marks from the benefit of Article 8(4) of Regulation No 207/2009, even though that provision does not provide for such an exclusion. That is true, for example, of geographical indications which are not registered in the European Union and which may benefit from the provisions of Article 8(4) of Regulation No 207/2009. That is also true of signs which, although they are not registered, may be protected by virtue of an action for passing off. The Board of Appeal itself, moreover, pointed out that an action for passing off concerned signs which made it possible to distinguish one category of goods in relation to ‘other similar goods’ (paragraph 19 of the contested decision). It must also be borne in mind that the extended form of passing-off, which is recognised by the United Kingdom courts, enables a number of traders to have rights over a sign which has acquired a reputation on the market.
27

In particular, regarding, first, the comparison between CCCF and ‘paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colorants; mordants’, EUIPO contends that, even though the former may be a component of the latter, given that the one is a raw material and the others are finished products, the connection between them is not close enough to enable them to be regarded as being similar. EUIPO contests the applicant’s arguments that, first, CCCF is not a raw material and, second, the goods covered by the contested trade mark are not always marketed as finished products. It argues that, by reason of their different natures, the goods in question can be regarded neither as being interchangeable nor as being in competition with each other. It adds that they also differ as to their intended purpose, in so far as the one is normally used in the production of other goods, whereas the others are normally purchased by end consumers for use in decoration. EUIPO argues that, according to case-law, raw materials which are subjected to a transformation process are essentially different from finished products which either incorporate or are covered by those raw materials, both in terms of their nature and in terms of their aim and intended purpose, and that, when that type of relationship exists between products, those products cannot be regarded as complementing each other. It adds that the applicant has not proved the existence of companies producing raw materials such as the product covered by the earlier trade mark and marketing finished products such as those covered by the contested trade mark. EUIPO contests the applicant’s argument that there is an overlap between purchasers of CCCF and purchasers of goods covered by the mark applied for and argues that, in any event, potential industrial purchasers will notice the differences between the goods in question.
88

However, it does not follow from the case-law cited above that other documents are to be excluded, in any event, from the scope of the exception relating to the protection of court proceedings. Indeed, it can be seen from that case-law that the principles of equality of arms and the sound administration of justice are at the heart of that exception (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 85). The need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial. However, in order for the exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link with a dispute pending before the Courts of the European Union, in respect of which the institution concerned is invoking that exception, and that disclosure of those documents, even though they were not drawn up in the context of pending court proceedings, should compromise the principle of equality of arms and, potentially, the ability of the institution concerned to defend itself in those proceedings. In other words, it is necessary that those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon.
45

However, while the information from the profit and loss account concerning the dumping investigation period corresponding to 2012, provided by the applicants or RFAI in response to the Commission’s questionnaire or more precise information provided subsequently during the investigation, referred to in [omissis] above, are indeed detailed in the sense that they identify a number of items — (for example, turnover, cost of products, export transport, export insurance, salaries and bonuses) according to the nature of the products (ferro-silicon under investigation and other products) and according to the destination of those products (independent customers in the European Union, related customers in the European Union, export to independent customers outside the European Union, export to related customers outside the European Union) — they do not make it possible to exclude with certainty, as regards the ferro-silicon under investigation sold to independent customers in the European Union, expenditure not covered by the operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States. In particular, for a number of items of expenditure mentioned in the reply, there is nothing to indicate the extent to which they also concerned operations prior to arrival at the EU frontier (for example, commissions, salaries and bonuses, financial expenses or income). As indicated in [omissis] above, the applicants indeed acknowledge that the breakdown between the costs of the various operations is not apparent in the light of the information provided during the investigation, while maintaining that the Commission ought itself to have requested from them information on that breakdown which they did not have to provide spontaneously. However, as was in essence held in the judgments of 4 May 2017, RFA International v Commission (C‑239/15 P, not published, EU:C:2017:337, paragraphs 34 to 44), and of 17 March 2015, RFA International v Commission (T‑466/12, EU:T:2015:151, paragraphs 44 and 57 to 64 and the case-law cited), where the exporter and importer are associated, as in the present case, it is for the interested party who intends to dispute the extent of the adjustments made on the basis of Article 2(9) of the basic regulation, on the ground that the adjustments determined in respect of selling, general and administrative costs for importation into the European Union are excessive, itself to supply specific evidence and calculations justifying those claims and, in particular, the alternative rate in relation to turnover that it suggests in order to represent the amount of those costs which it considers appropriate. That is in particular relevant when the interested party argues that the Commission has in its possession only overall data likely to cover not only the operations between the arrival at the EU frontier and the first resale to an independent buyer on the territory of the EU Member States, but also the operations prior to that arrival.
Judgment of the General Court (Fifth Chamber) of 16 March 2016 —

Työhönvalmennus Valma v OHIM (Shape of game chest containing wooden blocks)

(Case T‑363/15)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of game chest containing wooden blocks — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 12)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 13-16, 21)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark in the shape of a game chest containing wooden blocks (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18-20, 30, 31, 50, 52)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Scope — Trade mark devoid of distinctive character throughout the EU — Acquisition by use also throughout the EU (Council Regulation No 207/2009, Arts 1(2), and 7(2) and (3)) (see paras 34-37, 41-43)

5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 38-40)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 4 May 2015 (Case R 1690/2014-2) concerning an application for registration of a three-dimensional sign in the shape of a game chest containing wooden blocks as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 15 December 2015 —

Shoe Branding Europe v OHIM (two parallel stripes on pants)

(Case T‑64/15)

‛Community trade mark — Application for a Community trade mark consisting of two parallel stripes on pants — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 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 distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b), and (3)) (see paras 13-15)

2. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — Absolute grounds for refusal — Burden of proof (Council Regulation No 207/2009, Arts 7(1)(b), and 76(1)) (see para. 16)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing two parallel stripes on pants (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24, 32)

4. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (see para. 31)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 3 December 2014 (Case R 2563/2013-5), concerning an application for registration of a sign consisting of two parallel stripes on pants as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 25 May 2016 —

Ice Mountain Ibiza v EUIPO — Marbella Atlantic Ocean Club (ocean ibiza)

(Case T‑6/15)

‛EU trade mark — Opposition proceedings — Application for EU figurative mark ocean ibiza — Earlier national figurative marks OC ocean club and OC ocean club Ibiza — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation No 207/2009’

1. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 17-19, 23, 64)

2. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark ocean ibiza — Figurative marks OC ocean club and OC ocean club Ibiza (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 24, 25, 54, 57, 62, 72)

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 — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 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 — Likelihood of confusion with the earlier mark — Similarity of the marks concerned — Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 35)

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 — Coexistence of earlier marks on the market — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 36, 37, 70)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 8 October 2014 (Case R 2207/2013-1) relating to opposition proceedings between Marbella Atlantic Ocean Club and Ice Mountain Ibiza.

Operative part

The Court:

1. Dismisses the action;
Four conditions must be satisfied before the period of limitation in consequence of acquiescence starts running if there is use of a later trade mark identical to the earlier trade mark or confusingly similar. First, the later trade mark must be registered; second, the application must have been made in good faith by its proprietor; third, the later trade mark must be used in the Member State where the earlier trade mark is protected; fourth, the proprietor of the earlier trade mark must be aware of the use of that trade mark after its registration.

The purpose of Article 54(2) of Regulation No 207/2009 on the EU trade mark is to penalise the proprietors of earlier marks who have acquiesced in the use of a later European Union trade mark registered for a period of five successive years, while being aware of such a use, by excluding them from seeking a declaration of invalidity or from bringing opposition proceedings in respect of that trade mark. That provision is intended to strike a balance between the interests of the proprietor of a mark in safeguarding its essential function and the interests of other economic operators in having signs capable of denoting their goods and services. That objective implies that, in order to safeguard that essential function, the proprietor of an earlier trade mark must be in a position to oppose the use of a later mark identical or similar to his own. It is only once the proprietor of the earlier trade mark becomes aware of the use of the later European Union trade mark that it has the option of not acquiescing in its use and, therefore, opposing it or seeking a declaration of invalidity of the later trade mark and that, consequently, the period of limitation in consequence of acquiescence starts running.

It follows therefore from a teleological interpretation of Article 54(2) of Regulation No 207/2009 that the relevant date from which the period of limitation in consequence of acquiescence starts running is when the proprietor becomes aware of the use of the later mark.

That interpretation requires the proprietor of the later mark to submit evidence of an actual awareness of the use of that mark by the proprietor of the earlier mark, failing which the latter would not be able to oppose the use of the later mark. In this respect, it is necessary to take into account the similar rule on limitation in consequence of acquiescence contained in Article 9(1) of Directive 89/104 on trade marks, replaced by Article 9(1) of Directive 2008/95 on trade marks, a rule in relation to which the eleventh recital in the preamble to Directive 89/104/EC (Recital 12 to Directive 2008/95) states that the claim of limitation in consequence of acquiescence is applicable where the proprietor of the earlier trade mark ‘has knowingly tolerated the use for a substantial length of time’, in other words ‘intentionally’ or ‘in full knowledge of the facts’. It must be noted that this assessment applies mutatis mutandis to Article 54(2) of Regulation No 207/2009, the wording of which corresponds to that of Article 9(1) of Directives 89/104 and 2008/95.

(see paras 30-33)
Judgment of the General Court (Third Chamber) of 29 November 2016 —

ANKO v REA

(Case T‑270/15)

(Arbitration clause — Subsidy agreement entered into in the context of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — ESS project — Conformity with the contractual provisions of the suspension of payments to the applicant and of the conditions for lifting that suspension of payments — Default interest)

1. Judicial proceedings—General Court seised under an arbitration clause—Contract subject to national law—Application of national provisions on jurisdiction—Precluded (Art. 272 TFEU) (see paras 43, 44)

2. Judicial proceedings—Res judicata—Scope—Order of the General Court removing a case from the register following withdrawal by the applicant—Possibility of the applicant bringing a second action with the same subject-matter—No res judicata (Art. 272 TFEU; Rules of Procedure of the General Court, Art. 87(5)) (see para. 48)

3. Judicial proceedings—Withdrawal—Need for a clear and unconditional manifestation of intention to withdraw the action—No obligation to state the grounds for withdrawal (Rules of Procedure of the General Court, Art. 99) (see para. 49)

Re:

APPLICATION based on Article 272 TFEU seeking a declaration that the suspension, imposed by REA, of the payment of the balance of the financial contribution owed to the applicant in respect of the implementation of Subsidy Agreement No 217951, for the financing of the ‘Emergency Support System’ project, entered into in the context of the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013), amounts to an infringement of its contractual obligations and that that sum must be paid to the applicant, together with default interest, to be calculated from the date of service of the action.

Operative part

The Court:

1. Declares that the Research Executive Agency (REA) suspended its payments to ΑΝΚΟ AE Antiprosopeion, Emporiou kai Viomichanias in breach of Section ΙΙ.5 (3)(d) of the general conditions annexed to Subvention Agreement No 217951 for the financing of the ‘Emergency Support System’ project, entered into in the context of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013);

2. Orders REA to pay to ΑΝΚΟ AE Antiprosopeion, Emporiou kai Viomichanias a sum corresponding to the intermediate payments which should not have been suspended concerning the latter’s participation in the ‘Emergency Support System’ project, within the limits of the balance of the financial aid available at the time of their suspension, together with default interest, starting from, for each reporting period, the expiry of the period for payment of 105 days following receipt of the corresponding reports, at the rate in force on the first day of the month of the payment default, as published in the Official Journal of the European Union, C series, increased by three and a half percentage points;
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. 23)
Judicial proceedings—General Court seised under an arbitration clause—Contracts concluded under a specific research, technological development and demonstration programme—Decision of the Commission demanding repayment of sums irregularly paid—Action seeking annulment of that decision and a declaration that the debt non-existent—Partial reclassification of the annulment action as an action concerning a contractual dispute—Conditions

(Arts 263 TFEU and 272 TFEU; Rules of Procedure of the General Court, Art. 76(d))

(see paras 60-63)
Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

(see paras 21, 48, 53, 69, 84)