ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 20 November 2018 –

St Andrews Links v EUIPO (ST ANDREWS)

(Case T‑790/17)

(EU trade mark — Application for the EU word mark ST ANDREWS — Absolute ground for refusal — Descriptive character — Geographical origin — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — 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 — Geographical names (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 21-26, 32, 33, 57)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Word mark ST ANDREWS (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 38, 41, 44, 49, 58)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 40)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 42, 52, 53)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 October 2017 (Case R 92/2017-4), relating to an application for registration of the word sign ST ANDREWS as an EU trade mark.

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

(Statute of the Court of the Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 76(d))

(see para. 31)
EU trade mark — Surrender, revocation and invalidity — Causes of revocation — Absence of genuine use of a trade mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Subject-matter and scope of Article 15(1), second subpara., (a), of Regulation No 207/2009

(Council Regulation No 207/2009, Arts 15(1), second para., (a) and 51(1)(a), replaced by European Parliament and Council Regulation 2017/1001, Arts 18(1), second para., (a) and 58(1)(a))

(see paras 15-20)
Judgment of the General Court (Ninth Chamber) of 17 January 2019 –

Mas Que Vinos Global v EUIPO — JESA (EL SEÑORITO)

(Case T‑576/17)

(European Union trade mark — Opposition proceedings — Application for EU word mark EL SEÑORITO — Earlier national word mark SEÑORITA — 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 24, 62)

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 28, 33, 45)

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 EL SEÑORITO and SEÑORITA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34, 35, 46, 47, 56, 58-66, 69)

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. 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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 53)

6. EU 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. 81)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 9 June 2017 (Case R 1775/2016-4), relating to opposition proceedings between JESA and Mas Que Vinos Global.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Simultaneous use of several signs

(Council Regulation No 207/2009, Arts 15(1) and 42(2) and (3))

(see paras 40, 41)
Judgment of the General Court (Fifth Chamber) of 31 January 2019 –

Pear Technologies v EUIPO — Apple (PEAR)

(Case T‑215/17)

(EU trade mark — Opposition proceedings — Application for the EU figurative trade mark PEAR — Earlier EU figurative trade mark depicting an apple — Relative ground for refusal — No similarity between the signs — Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(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 (Council Regulation No 207/2009, Art. 8(5)) (see para. 16)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions — Link between the marks — Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see para. 17)

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 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 20, 21)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see para. 22)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Figurative mark PEAR and figurative mark representing an apple (Council Regulation No 207/2009, Art. 8(5)) (see paras 23, 52-54, 78-80)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 18 January 2017 (Case R 860/2016-5), relating to opposition proceedings between Apple and Pear Technologies.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 January 2017 (Case R 860/2016-5);

2. Orders EUIPO to pay, in addition to its own costs, half of the costs incurred by Pear Technologies Ltd;
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of commercial interests — Scope — Application to administrative files relating to procedures for reviewing State aid — General presumption that the exception applies to the right of access to all the documents on the administrative file — Maintenance of the presumption after closure of the procedure

(Art. 108(2) TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent; Council Regulation 2015/1589, Art. 30)

(see paras 40, 41, 43-45, 47)
Judgment of the General Court (Eighth Chamber) of 7 February 2019 –

Duym v Council

(Case T‑549/17)

(Civil service — Officials — Appointment to a post of head of unit — Vacancy notice — Rejection of an application — Appointment of another candidate — Obligation to state reasons — Principle of sound administration — Interests of the service — Manifest error of assessment — Principle of non-discrimination)

1. Officials — Competitions — Selection Board — Rejection of application — Obligation to state reasons — Scope — Observance of the secrecy of proceedings — Obligation to state reasons, at the latest, at the stage of rejecting the complaint (Art. 296 TFEU; Staff Regulations of Officials, Arts 25, second para., 90(2), 91 and Annex III, Art. 6) (see paras 23-25, 39, 41, 42)

2. Officials — Vacancy — Consideration of the comparative merits of candidates — Discretion of the appointing authority — Observance of the conditions laid down in the vacancy notice — Judicial review — Limits — Manifest error of assessment — None (Charter of Fundamental Rights of the European Union, Art. 41(1); Staff Regulations of Officials, Arts 7 and 29) (see paras 48, 49, 56-60, 74, 83, 90, 91)

3. Officials — Recruitment — Procedure — Obligation for the administration to communicate with a candidate in a language of which he has thorough knowledge — Scope (Staff Regulations of Officials, Art. 27) (see paras 110, 115)

Re:

Application based on Article 270 TFEU and seeking the annulment of the decision of the advisory selection board, communicated to the applicant by email of 7 October 2016, rejecting his application in the context of the selection procedure for the Head of the Dutch Language Unit for the Council’s Translation Service, as well as the subsequent decision of the appointing authority of the Council of 20 December 2016 to appoint Ms A. to the post.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 7 February 2019 –

Sumol + Compal Marcas v EUIPO — Jacob (Dr. Jacob’s essentials)

(Case T‑656/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark Dr. Jacob’s essentials — Earlier international word mark COMPAL ESSENCIAL — Earlier national and international figurative marks FRUTA essencial and Compal FRUTA essencial — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation 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 27-30)

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 Dr. Jacob’s essentials — Word mark COMPAL ESSENCIAL and figurative marks FRUTA essencial and Compal FRUTA essencial (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34-37)

Re:

Action for annulment of the decision of the Fifth Board of Appeal of EUIPO of 11 July 2017 (Case R 2067/2016-5), relating to opposition proceedings between Sumol + Compal Marcas and Mr Jacob.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 July 2017 (Case R 2067/2016-5);

2. Orders EUIPO to pay, in addition to its own costs, those incurred by Sumol + Compal Marcas, SA;
Judgment of the General Court (Eighth Chamber) of 28 March 2019 –

Coesia v EUIPO (Representation of two oblique red curves)

(Case T‑829/17)

(EU trade mark — Application for an EU figurative mark representing two oblique red curves — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001))

1. EU trade mark — Procedural provisions — Statement of reasons for decisions — First sentence of Article 75 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. 16)

2. 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 — Account taken by the General Court of matters of law and fact not previously raised before the departments of EUIPO — Precluded (Council Regulation No 207/2009, Art. 65) (see para. 24)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Meaning — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27-29, 64)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing two oblique red curves (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 31-39, 45-59)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character –Meaning — Criteria for assessment — Recognition of the distinctiveness of the sign not subject to a finding of a certain level of creativity or linguistic or artistic imagination (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 42-44)

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 68-71)

7. EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see paras 81, 85, 86)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 29 September 2017 (Case R 1272/2017-5), regarding an application for registration of a figurative sign representing two oblique red curves as an EU trade mark.

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

(Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 25)
Judgment of the General Court (First Chamber) of 26 June 2019 –

Vialto Consulting v Commission

(Case T‑617/17)

(Non-contractual liability — Instrument for pre-accession assistance — Third country — National public procurement — Devolved management — Decision of a national authority — Investigations by OLAF — Non-material damage — Sufficiently serious breach of a rule of law conferring rights on individuals — Article 7(1) of Regulation (EC) No 2185/96 — Principle of sound administration — Legitimate expectations — Proportionality — Right to be heard)

1. Non-contractual liability — Conditions — Unlawfulness — Loss — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para. TFEU) (see paras 34-38)

2. European Anti-Fraud Office (OLAF) — Investigations — On-the spot checks and inspections — Determination of the information and documents necessary for on-the spot checks and inspections to be carried out properly — OLAF’s discretion (European Parliament and Council Regulation No 883/2013, Art. 3; Council Regulation No 2185/96, Art. 7(2)) (see para. 68)

3. European Anti-Fraud Office (OLAF) — Investigations — On-the spot checks and inspections — No limitation on OLAF’s access to files or documents specifically referring to the contract or project in question (see para. 86)

4. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities (see para. 114)

Re:

Application based on Article 268 TFEU seeking compensation for the damage allegedly suffered by the applicant due to unlawful acts allegedly committed, first, by the European Anti-Fraud Office (OLAF) in the course of an inspection carried out in the applicant’s premises and, second, by the European Commission following that inspection.

Operative part

The Court:

1. Dismisses the action;
Competition — Administrative procedure — Request for information — Rights of defence — Absolute right to silence –None — Right to refuse to provide an answer implying recognition of the existence of an infringement — Questions inviting an undertaking to provide information relating to facts known to it which may be used to establish the existence of anti-competitive behaviour

(Art. 102 TFEU; EEA Agreement, Art. 54; Charter of Fundamental Rights of the European Union, Art. 48(2); Council Regulation No 1/2003, Art. 18)

(see paras 179-185, 188, 191)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — None — Inadmissibility

(Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court, Art. 76(d))

(see paras 28-31)
Judgment of the General Court (First Chamber) of 19 September 2019 –

BTC v Commission

(Case T‑786/17)

(Arbitration clause — Grant agreement entered into in the context of the eTEN framework programme, relating to trans-European telecommunications networks — ‘SafeChemo’ project — Investigation report from OLAF finding certain expenses incurred to be ineligible — Repayment in part of the sums paid — Counterclaim)

1. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Action relating in reality to a contractual dispute — Annulment of a debit note issued by the Commission — Lack of jurisdiction of the EU judicature — Inadmissibility (Arts 263 and 272 TFEU) (see paras 28-35)

2. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Financing covering only expenses actually incurred — Demonstration that the costs have actually been incurred — Production of accounting documents in accordance with the technical conditions laid down for the granting of the subsidy concerned and capable of review in the context of an audit — None — Ineligible costs (Art. 317 TFEU) (see paras 77-80, 84, 85, 107)

3. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Financing covering only expenses actually incurred — Proceedings brought by the Commission for recovery of advances made in the context of the assistance — Demand for recovery arising from stipulations of the agreements — Breach of principle of proportionality — None (Art. 317 TFEU) (see paras 95-100)

Re:

First, application under Article 263 TFEU seeking the annulment (i) of Commission Decision Ares(2017) 4709558 of 27 September 2017 demanding repayment of an amount paid to the applicant pursuant to Agreement C046311 for the financing of the ‘ePrescription and Automation for a Safe Management of Cytostatistics’ project, entered into in the context of the eTEN programme, relating to trans-European telecommunications networks, (ii) of the Commission’s letter Ares(2017) 4790311 of 2 October 2017 communicating Debit Note No 3241712708, and (iii) of Debit Note No 3241712708, and, second, application under Article 272 TFEU seeking a declaration that the Commission’s demand for repayment is unfounded and a counterclaim seeking an order against the applicant for repayment of an amount wrongfully paid under that agreement.

Operative part

The Court:

1. Dismisses the action brought by BTC Srl;

2. Orders BTC to pay the Commission the principal sum of EUR 380 989.49, plus default interest at the rate of 3.5% from 17 November 2017 until payment in full of that amount;
EU budget – EU financial assistance – Obligation on the beneficiary to comply with the conditions for grant of the assistance – Contracts concluded under a specific research, technological development and demonstration programme – Conditions of ineligibility of costs – Conflict of interests on the part of the beneficiary – Concept – Consequences – Recovery of the sums advanced to the beneficiary

(European Parliament and Council Regulation No 2321/2002, Art. 18(2); Commission Regulation No 2342/2002, Art. 183)

(see para. 62)
49

In the present case, it must be considered that that principle has not been infringed, in the light of the difference, in 2015, between the applicant’s situation and that of the other officials of the Court of Justice of the European Union whose comparative merits were under consideration prior to promotion. Unlike those other officials, the applicant was transferred to another institution during the promotion exercise concerned. The period taken into account by the Court of Justice of the European Union for the purposes of comparing the applicant’s merits with those of his colleagues in the same institution, and for the purposes of awarding promotion points, was thus necessarily limited, in 2015, to 1 January to 15 March 2015. It is therefore irrelevant that, as the applicant maintains, he was in an identical situation to that of his colleagues who were also officials of the Court of Justice of the European Union in 2014, particularly as the applicant does not allege that he suffered discrimination in the award of promotion points for 2014. It may be added, in response to the claim of a risk of arbitrariness in the determination of the date of transfer by the institutions, and of a risk of misuse of powers, that that risk is wholly unsupported and that it is, in any event, largely limited by the pro rata temporis measure and by the fact that the transfer takes place on the official’s initiative and that the two institutions concerned must agree on the transfer date determined.