ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Third Chamber) of 16 June 2015 — Gako Konietzko v OHIM (Shape of a cylindrical container in red and white)

(Case T‑654/13)

‛Community trade mark — Application for three-dimensional Community trade mark — Shape of a cylindrical container in red and white — Absolute ground for refusal — Lack of 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)) (see paras 11, 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 — Shape of a cylindrical container in red and white (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18, 25, 27, 39)

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 constituted by the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20, 21)

4. Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Arts 75 and 77) (see paras 41, 42)

5. Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Earlier registration of the mark in certain Member States or third countries — Decisions not binding EU bodies (Council Regulation No 207/2009) (see para. 46)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 19 September 2013 (Case R 2232/2012-1), concerning an application for registration of a three-dimensional sign consisting of the shape of a cylindrical container in red and white as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 21 May 2015 —

Rubinum v Commission

(Case T‑201/13)

‛Public health — Food safety — Additive for use in animal nutrition — Preparation of Bacillus cereus var. toyoi — Commission decision to suspend the authorisations of that preparation — Risk to health — Error of Law — Precautionary principle’

1. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2)) (see paras 23, 29, 30)

2. Agriculture — Approximation of laws on animal health — Additives in feedingstuffs — Authorisation procedure — Modification, suspension and revocation of authorisations — Decision of the Commission to suspend authorisation of an existing additive — Lawfulness (European Parliament and Council Regulation No 1831/2003, Arts 9, 10(1), and 13(1) and (2)) (see paras 42-44)

3. Agriculture — Approximation of laws on animal health — Additives in feedingstuffs — Authorisation procedure — Modification, suspension and revocation of authorisations — Authorisations no longer satisfying the conditions laid down in Article 5 of Regulation No 1831/2003 — Suspension of authorisations by the Commission — No obligation to demonstrate the existence of a serious risk to health (European Parliament and Council Regulations No 1831/2003, Arts 5, and 13(1) and (2), and No 178/2002, Arts 53 and 54) (see paras 46-49, 51-53)

4. Agriculture — Approximation of laws on animal health — Additives in feedingstuffs — Authorisation procedure — Discretion of the Commission as to the risk presented by an additive to human and animal health — Scope — Compliance with the precautionary principle where existence of a risk uncertain — Judicial review — Limits (European Parliament and Council Regulation No 1831/2003) (see paras 57-61, 63-65, 72, 98)

5. Judicial proceedings — Producing evidence — Time-limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court, Arts 44(1), 46(1), and 48(1)) (see para. 81)

6. Actions for annulment — Contested act — Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) (see para. 84)

7. Agriculture — Approximation of laws on animal health — Additives in feedingstuffs — Authorisation procedure — No obligation on the Commission or the European Food Safety Authority to invite the applicant for an authorisation to provide additional information (European Parliament and Council Regulation No 1831/2003, Art. 8(2)) (see para. 105)

Re:

APPLICATION for annulment of Commission Implementing Regulation (EU) No 288/2013 of 25 March 2013 concerning the suspension of the authorisations of the preparation of Bacillus cereus var. toyoi (NCIMB 40112/CNCM I 1012) as provided for by Regulations (EC) No 256/2002, (EC) No 1453/2004, (EC) No 255/2005, (EC) No 1200/2005, (EC) No 166/2008 and (EC) No 378/2009 (OJ 2013 L 86, p. 15).

Operative part

The Court:

1. Dismisses the action;
1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 March 2013 (Case R 2196/2011‑2) to the extent that it has declared the Community figurative mark STAYER invalid in respect of ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 22, 43)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark AC and figurative marks AC ANN CHRISTINE, AC ANN CHRISTINE OCEAN and AC ANN CHRISTINE INTIMATE (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24, 52)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 28)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 28 November 2012 (Case R 108/2012-4), concerning opposition proceedings between Ann Christine Lizenzmanagement GmbH & Co. KG and Reiner Appelrath-Cüpper Nachf. GmbH.

Operative part

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 November 2012 (Case R 108/2012-4) in so far as it upheld in part the opposition brought by Ann Christine Lizenzmanagement GmbH & Co. KG;

2. Orders OHIM to bear its own costs and to pay half the costs incurred by Reiner Appelrath-Cüpper Nachf. GmbH;

3. Orders Ann Christine Lizenzmanagement GmbH & Co. KG to bear its own costs and to pay half the costs incurred by Reiner Appelrath-Cüpper Nachf. GmbH for the purposes of the proceedings before the Board of Appeal.
Keywords

Subject of the case

Operative part



Keywords

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Iran — Measures in the context of the fight against nuclear proliferation — Ambit of the review — Exclusion of elements brought to the knowledge of the institution after the contested decision was adopted (Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions 2010/413/CFSP, Art. 20(1)(c), and 2012/829/CFSP, Art. 1; Council Regulations No 267/2012, Art. 23(2)(d), and No 1264/2012) (see paras 32-34, 40)

2. Actions for annulment — Judgment annulling a measure — Effects — Partial annulment of a regulation and a decision on the adoption of restrictive measures against Iran — Such annulment taking effect as from the expiry of the period for lodging an appeal or from the dismissal of the appeal (Arts 264, second para., TFEU, and 266 TFEU; Statute of the Court of Justice, Art. 56, first para.; Council Decisions 2010/413/CFSP, Art. 20(1)(c), and 2012/829/CFSP, Art. 1; Council Regulations No 267/2012, Art. 23(2)(d), and No 1264/2012) (see paras 44, 45, 47-50)

Subject of the case

Re:

APPLICATION for annulment of Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 356, p. 71) and Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 55) in so far as those acts concern the applicant.

Operative part

Operative part

The Court:

1. Annuls Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran in so far as it listed Oil Pension Fund Investment Company in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;

2. Annuls Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran in so far as it listed Oil Pension Fund Investment Company in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;

3. Orders the effects of Decision 2012/829 and Implementing Regulation No 1264/2012 to be maintained as regards Oil Pension Fund Investment Company until the expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the dismissal of that appeal;

4. Orders the Council of the European Union to bear its own costs and to pay those incurred by Oil Pension Fund Investment Company.
A sign constituted by a rectangular wooden box made with a system of sliding racks for storing the pieces and a closing mechanism for those racks at both ends of the box is devoid of distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark. Accordingly, the mark applied for has a sliding mechanism which allows the four game racks to be incorporated within the box and also the game pieces, and the supports for the racks are included between the four racks which form the supporting walls of the box which has two small plates, attached by screws, acting as a closing mechanism without there being a need for further packaging. Each lateral wall has, on the inside, two carved slots which allow the two pairs of racks to slide. The small plates for closing the box are rectangular in shape with rounded ends and bevelled edges, fixed to the frame by a screw.

Having regard to that description, the mark applied for does not depart significantly from the norms or customs of the sector concerned. It is common for parlour games and toys (for example the toy version of the game rummy for children) to be packaged and sold in packaging made from different types of material including wooden boxes.

It is common knowledge that the goods at issue are often presented in a rectangular wooden box. Similarly, the way of unfolding and assembling the box the shape of which constitutes the mark in question, namely by a system of sliding racks allowing the game to be put away or to be assembled, does not depart significantly from the norms or customs of the sector. It is well-known that similar sliding systems exist to enable the goods at issue to be put away and to be assembled. Nor, seen as a whole, do the various characteristics of the mark applied for enable that mark to be considered as differing significantly from the norms and customs of the sector. Consequently, the mark applied for is not distinctive allowing the relevant public to identify the goods at issue as originating from a specific undertaking and, therefore, to distinguish those goods from those coming from other undertakings.

(see paras 44-46)
Judgment of the General Court (Fifth Chamber) of 7 October 2015 —

The Smiley Company v OHIM (Shape of a smiley with heart-shaped eyes)

(Case T‑656/13)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of a smiley with heart-shaped eyes — Absolute ground for refusal — Lack of 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 — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 21, 22)

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 23-29)

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 constituted by the shape of a smiley with heart-shaped eyes (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 33-41)

4. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see paras 43-47)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 8 October 2013 (Case R 997/2013-4) concerning an application for registration as a Community trade mark of a three-dimensional sign comprising the shape of a smiley with heart-shaped eyes.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 16 December 2015 —

Perfetti Van Melle v OHIM (DAISY/MARGARITAS)

(Joined Cases T‑381/13 and T‑382/13)

‛Community trade mark — Application for Community word marks DAISY and MARGARITAS — Absolute grounds for refusal — Partial refusal to register — No distinctive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

1. Community 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 OHIM bodies — Exclusion (Council Regulation No 207/2009, Art. 65) (see para. 24)

2. Community trade mark — Appeals procedure — Appeal to a Board of Appeal — Competence of the Boards of Appeal (Council Regulation No 207/2009, Arts 59, first sentence, and 64(1)) (see paras 33-35, 38)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 50, 51)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Word marks DAISY and MARGARITAS (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 63-70)

5. 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)) (see paras 77-79)

Re:

ACTIONS brought against two decisions of the First Board of Appeal of OHIM of 10 April 2013 (Cases R 427/2012-1 and R 430/2012-1), concerning applications for registration of the word sign DAISY and the word sign MARGARITAS as Community trade marks.

Operative part

The Court:

1. Annuls the two decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 10 April 2013 (Cases R 427/2012-1 and R 430/2012-1), in so far as they rejected the applications for registration of the word sign DAISY and the word sign MARGARITAS as Community trade marks in respect of the following goods: ‘confectionery, pastries, sweets, soft caramels, marshmallows, caramels, chewing gum, gelatine (confectionery), liquorice, lollipops, toffee, pastilles, sugar, chocolate, cocoa’;
Judgment of the General Court (First Chamber) of 2 December 2015 —

Kenzo v OHIM — Tsujimoto (KENZO ESTATE)

(Case T‑528/13)

‛Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark KENZO ESTATE — Earlier Community word mark KENZO — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Partial rejection of the opposition’

1. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 17, 22)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark 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. 30)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Proof to be adduced by proprietor — Future, non-hypothetical risk of unfair advantage or damage (Council Regulation No 207/2009, Art. 8(5)) (see paras 31, 32)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Word marks KENZO ESTATE and KENZO (Council Regulation No 207/2009, Art. 8(5)) (see paras 33-36)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 July 2013 (Case R 1363/2012-2), relating to opposition proceedings between Kenzo and Mr K. Tsujimoto.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2013 (Case R 1363/2012-2) in so far as it rejected the opposition in respect of the goods in Classes 29 to 31 covered by the international registration applied for;

2. Orders OHIM to pay the costs incurred by Kenzo in the course of the present proceedings;

3. Orders OHIM and Mr Kenzo Tsujimoto to bear the costs which each of them has respectively incurred in the course of the present proceedings;
Judgment of the General Court (Ninth Chamber) of 28 January 2016 —

Gugler France v OHIM — Gugler (GUGLER)

(Case T‑674/13)

‛Community trade mark — Invalidity proceedings — Community figurative mark GUGLER — Absolute ground for refusal — Article 52(1)(b) of Regulation (EC) No 207/2009 — Relative ground for refusal — Article 8(4) and Article 53(1)(c) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Ground raised by the Court of its own motion’

1. Community trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an earlier trade mark as referred to in Article 8(4) of Regulation No 207/2009 — Conditions — Interpretation in the light of EU law — Assessment by reference to the criteria determined by the national law governing the sign relied on (Council Regulation No 207/2009, Arts 8(4), and 53(1)(c)) (see paras 34-36)

2. Community trade mark — Surrender, revocation and invalidity — Invalidity action based on the existence of an earlier national right — Burden of proof (Council Regulation No207/2009, Arts 8(4)(b), and 53(1)(c)) (see paras 37, 38)

3. Actions for annulment — Grounds — Infringement of essential procedural requirements — Inadequate statement of reasons — To be considered of the Court’s own motion — Obligation to comply with the audi ateram partem principle (Arts 263 TFEU and 296 TFEU) (see paras 53, 54)

4. Community 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 (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 72-74)

5. Community trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits (Council Regulation No 207/2009, Art. 65(3)) (see para. 100)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 16 October 2013 (Case R 356/2012-4), relating to invalidity proceedings between Gugler France and Mr Alexander Gugler.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2013 (Case R 356/2012-4);

2. Dismisses the action as to the remainder;