ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fifth Chamber) of 29 November 2018 –

Sata v EUIPO — Zhejiang Auarita Pneumatic Tools (Spray gun for paint)

(Case T‑651/17)

(Community design — Invalidity proceedings — Registered Community design representing a paint spray gun — Earlier Community designs — Ground for invalidity — Informed user — Designer’s degree of freedom — Individual character — Saturation of the state of the art — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — Expediency of oral proceedings — Article 64(1) of Regulation No 6/2002 — Duty to state reasons — Article 62 of Regulation No 6/2002)

1. Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Informed user — Meaning (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b)) (see paras 19, 20)

2. Community designs — Procedural provisions — Statement of reasons for decisions — First sentence of Article 62 of Regulation No 6/2002 — Scope identical to that of Article 296 TFEU — Recourse by the Board of Appeal to implicit reasoning — Lawfulness — Conditions (Art. 296 TFEU; Council Regulation No 6/2002, Art. 62, first sentence) (see paras 21, 22, 68)

3. Community designs — Ground 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 — Creative licence (Council Regulation No 6/2002, Arts 6(2) and 25(1)(b)) (see paras 31, 32)

4. Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Global assessment of all the elements of the prior design (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b)) (see para. 39)

5. Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Representation of a spray gun for paint (Council Regulation No 6/2002, Arts 6(1) and 25(1)(b)) (see paras 41, 42, 45, 47, 49)

6. Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Saturation of the state of the art — Relevance (Council Regulation No 6/2002, Art. 6) (see para. 54)

7. Community designs — Appeals procedure — Recourse to the oral procedure — Discretion of the Office (Council Regulation No 6/2002, Art. 64(1)) (see para. 63)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 12 July 2017 (Case R 914/2016-3), relating to invalidity proceedings between Zhejiang Auarita Pneumatic Tools and Sata.

Operative part

The Court:

1. Dismisses the action;
EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the purpose of inspections, investigations and audits — Application to documents concerning an EU Pilot procedure — General presumption that the exception to the right of access applies — Limits — Rebuttable

(Arts 15(3) TFEU and 258 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), 3rd indent)

(see paras 33-36, 46, 64-67)
Although a sworn statement may have a probative value, in order to assess that value it is necessary to check the probability and the veracity of the account contained in the statement, by taking account of, inter alia, the person from whom the document originates, the circumstances in which it came into being, the person to whom it is addressed and whether, on its face, the document appears sound and reliable.

Pursuant to Article 108(11) of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, as amended by Regulation 2015/1929, the Court has unlimited jurisdiction to review a decision whereby the contracting authority excludes an economic operator and/or imposes on it a financial penalty, including reducing or increasing the duration of the exclusion and/or cancelling, reducing or increasing the financial penalty imposed.

However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas. The failure to review the whole of the contested decision of the Court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file.

(see paras 82, 83)
Judgment of the General Court (Ninth Chamber) of 14 December 2018 –

UC v Parliament

(Case T‑572/17)

(Staff case — Officials — Promotion — 2015 promotion round — Staff report — Award of merit points — Obligation to state reasons — Right to be heard — Manifest error of assessment — Liability — Non-material damage)

1. Actions brought by officials — Prior administrative complaint — Concept (Staff Regulations of Officials, Art. 90(2)) (see paras 26, 27, 35)

2. Officials — Reports procedure — Staff report — Obligation to state reasons — Scope (Staff Regulations of Officials, Art. 43) (see paras 56-59)

3. Actions for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality (Arts 263 and 296 TFEU) (see para. 67)

4. Officials — Promotion — Decision awarding merit points — Complaint — Rejection decision — Obligation to state reasons — Scope (Staff Regulations of Officials, Arts 45 and 90(2)) (see para. 75)

5. Officials — Principles — Rights of defence — Obligation to hear the person concerned before adopting a measure adversely affecting him — Scope (Charter of Fundamental Rights of the European Union, Art. 41(2); Staff Regulations of Officials, Art. 90(2)) (see paras 86-90)

6. Officials — Reports procedure — Staff report — Discretion of the assessors — Judicial review — Limits (Staff Regulations of Officials, Art. 43) (see para. 99)

7. Actions brought by officials — Application for damages linked to an application for annulment — Dismissal of the application for annulment leading to dismissal of the application for damages (Staff Regulations of Officials, Arts 90 and 91) (see paras 113, 114)

Re:

Action under Article 270 TFEU seeking, first, annulment of the applicant’s staff report for 2015, of the decision to award him two merit points for that year and of the decision to reject his complaint and, secondly, compensation for the non-material damage allegedly suffered by the applicant.

Operative part

The Court:

1. Dismisses the action;
European Union public contracts — Tender procedure — Award of contracts — Award criteria — Duty to comply with the principles of equal treatment of tenderers and transparency — Scope — Requirement of clarity and precision — Discretion of the contracting authority as to the choice of award criteria

(European Parliament and Council Regulation No 966/2012, Art. 102; Commission Regulation No 1268/2012, Art. 149)

(see paras 118-121)
It is clear from Article 108(8)(c) of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, as amended by Regulation 2015/1929, that, before adopting any recommendation, the panel established under Article 108 is to give the economic operator and the notified contracting authorities the opportunity to submit observations. However, the applicable legislation does not specify the means of communication by which the economic operator is to be notified by the panel established under Article 108 of the classification in law of the facts in question and the penalty considered.

In that regard, a letter from the Commission containing the classification in law of the facts in question and the penalty considered by the panel established under Article 108 is properly notified provided that it is communicated to its addressee and the addressee is placed in a position to become aware of it. Thus, it is for the Commission to ensure the effectiveness of the right to be heard, and consequently, it is for the Commission to show that it placed the applicant in a position in which it can effectively make known its views as regards the information on which the Commission intends to base its decision. In those circumstances, it was not sufficient for the Commission to rely on the read receipt to prove that the applicant had been placed in a position to become aware of the letter at issue or that the applicant was aware of the existence or dispatch of such a letter. A read receipt is an email generated and sent automatically by the addressee’s computer system without any manual intervention on the part of the addressee and, therefore, without the addressee necessarily being made aware of the existence of that email.

Moreover, although notification by registered letter with acknowledgement of receipt is not the only possible means of notification of administrative decisions, it remains a particularly safe solution due to the specific guarantees it offers both to the individual concerned and to the administration, especially when the individual concerned is external to the institutions. One of those guarantees is the confirmation afforded by the addressee’s signature on the acknowledgement of receipt that the addressee knows that a letter is addressed to him and requires his attention. A read receipt differs from a postal acknowledgement of receipt in that it offers no such guarantee. Unlike the signature on an acknowledgement of receipt by the addressee of a letter, or the composing and sending of a confirmation of receipt of an email by its addressee, a read receipt, which is generated and sent automatically by the addressee’s computer system, does not enable it to be established beyond doubt that the addressee was aware of or was placed in a position to become aware of the letter at issue on the day that the read receipt was sent.

(see paras 45-47, 60-62)
Judgment of the General Court (Seventh Chamber) of 4 April 2019 –

United Wineries v EUIPO — Compañía de Vinos Miguel Martín (VIÑA ALARDE)

(Case T‑779/17)

(EU trade mark — Opposition proceedings — Application for EU word mark VIÑA ALARDE — Earlier national word mark ‘ALARDE’ — Proof of genuine use of the earlier mark — Article 42(2) and (3) of Regulation (EC) No 207/2009 (now Article 47(2) and (3) of Regulation (EU) 2017/1001) — Relative ground for refusal — Likelihood of confusion — Identity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001))

1. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Meaning — Criteria for assessment (Council Regulation No 207/2009, Arts 42(2) and 3) (see paras 17-20)

2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Application of the criteria to the case in question (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 62)

3. 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. 68)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 74, 75)

5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 78, 79, 87)

6. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks VIÑA ALARDE and (ALARDE) (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 84-86, 88, 89, 91, 94, 95, 100)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 25 September 2017 (Case R 281/2017-5) relating to opposition proceedings between Compañía de Vinos Miguel Martín and United Wineries.

Operative part

The Court:

1. Dismisses the action;
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 20, 21)
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 — Concept

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see para. 41)
3.

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 — Degree of legal protection of the signs at issue — Commercial logic underlying the registration of the contested sign as an EU trade mark — Chronology of events characterising the filing of the trade mark application — Origin of the sign at issue and its use since its creation (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 32-36)
Officials — Members of the contract staff — Recruitment — Probationary period — Report at the end of the probationary period — Delay in drawing up report — Validity

(Conditions of Employment of Other Servants of the European Union, Art. 84)

(see paras 72-74)
Judgment of the General Court (Fourth Chamber) of 12 July 2019 –

Ogrodnik v EUIPO — Aviário Tropical (Tropical)

(Case T‑276/17)

(EU trade mark — Invalidity proceedings — EU figurative mark Tropical — Earlier national word mark TROPICAL — Relative ground for refusal — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001) — Similarity of the goods — Likelihood of confusion — Coexistence of the marks)

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 — Coexistence of two marks on a given market — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27, 79, 80)

2. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30-32)

3. EU trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an identical or similar earlier mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark Tropical and word mark TROPICAL (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 53, 61, 63, 74, 85-88)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 February 2017 (Case R 2125/2016-1), relating to invalidity proceedings between Aviário Tropical and Mr Ogrodnik.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 February 2017 (Case R 2125/2016 1) in so far as, in that decision, the Board of Appeal upheld the application for a declaration of invalidity in respect of ‘products and preparations for the breeding of birds, reptiles, amphibians’ in Class 31 and ‘veterinary, therapeutic, disinfecting and sanitary products and preparations for use in terraristics’ in Class 5;

2. Dismisses the appeal brought by Aviário Tropical, SA, against the decision of the Cancellation Division of EUIPO of 15 July 2013 (R 1948/2013 4) in so far as that appeal seeks the annulment of the trade mark TROPICAL in respect of ‘products and preparations for the breeding of birds, reptiles, amphibians’ in Class 31 and ‘veterinary, therapeutic, disinfecting and sanitary products and preparations for use in terraristics’ in Class 5;

3. Dismisses the action as to the remainder;

4. Orders Mr Ogrodnik to pay half of EUIPO’s costs and half of his own costs;
Judgment of the General Court (Eighth Chamber) of 24 October 2019 –

Rubik’s Brand v EUIPO — Simba Toys (Shape of a cube with surfaces having a grid structure)

(Case T‑601/17)

(EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a cube with surfaces having a grid structure — Absolute ground for refusal — Article 7(1)(e)(ii) of Regulation No 40/94 (now Article 7(1)(e)(ii) of Regulation 2017/1001) — Sign consisting exclusively of the shape of goods necessary to obtain a technical result — Article 76(1) of Regulation (EC) No 207/2009 (now Article 95(1) of Regulation 2017/1001) — Second sentence of Article 75(1) of Regulation No 207/2009 (now the second sentence of Article 94(1) of Regulation 2017/1001) — Article 65(6) of Regulation No 207/2009 (now Article 72(6) of Regulation 2017/1001))

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Concept — Interpretation in the light of the public interest underlying each of them (Council Regulation No 40/94, Art. 7(1)(e)(ii)) (see paras 43-45)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Concept — Existence of other shapes allowing the same technical result to be obtained — Not relevant to the ground for refusal (Council Regulation No 40/94, Art. 7(1)(e)(ii)) (see para. 46)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Identification of the essential characteristics of a three-dimensional sign (Council Regulation No 40/94, Art. 7(1)(e)(ii)) (see paras 47-49)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Assessment of the essential characteristics in the light of the technical function of the goods (Council Regulation No 40/94, Art. 7(1)(e)(ii)) (see paras 50-52)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods necessary to obtain a technical result — Shape of a cube with surfaces having a grid structure (Council Regulation No 40/94, Art. 7(1)(e)(ii)) (see paras 70, 81, 84, 85, 90-93, 97-99)

6. EU trade mark — Procedural provisions — Examination of the facts of EUIPO’s own motion — Invalidity proceedings concerning absolute grounds for refusal — Examination restricted to the facts, evidence and arguments provided — Well-known facts taken into account (Council Regulation No 207/2009, Art. 76(1)) (see para. 82)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 19 June 2017 (Case R 452/2017-1) relating to invalidity proceedings between Simba Toys and Rubik’s Brand.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings — Intervention — Objection of inadmissibility not raised by the defendant — Inadmissibility — Absolute bar to proceeding — To be considered of the Court's own motion

(Statute of the Court of Justice, Arts 40, fourth para.; Rules of Procedure of the General Court, Arts 129 and 142(3))

(see para. 36)
Agriculture — EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Financial correction — Application of two financial corrections pursuant to separate provisions and involving different checks — Whether permissible — Breach of principle of proportionality — None

(Council Regulations No 1290/2005, Art. 17 and No 73/2009, Art. 8; Commission Regulation No 883/2006, Art. 9(2)(b))

(see paras 57, 62, 63, 72, 73)
Judgment of the General Court (Eighth Chamber) of 27 October 2021 –

Clean Sky 2 Joint Undertaking v Revoind Industriale di Pindaru Gelu

(Case T‑270/17)

(Arbitration clause – Grant agreement concluded in the framework of the Seventh Framework Programme for research and technological development including demonstration activities (2007-2013) – Non-performance of the contract – Repayment of the amounts advanced – Default interest – Procedure by default)

Judicial proceedings – Action before the General Court – Application of the default procedure – Obligation of the Court to rule on the applicant’s pleas – Conditions

(Rules of Procedure of the General Court, Art. 123(3))

(see paras 25-27, 35)

Re:

Action brought under Article 272 TFEU seeking an order for Revoind Industriale di Pindaru Gelu to repay the advanced payment paid under the Grant Agreement for partners No 620108, plus accrued late payment interest.

Operative part

The Court:

1. Orders Revoind Industriale di Pindaru Gelu Sas to pay Clean Sky 2 Joint Undertaking the amount of EUR 625 793.42, together with default interest calculated at 3.5% per annum from 7 February 2017 and until the date of full payment of the amount due;
52

In any event, it cannot be inferred that one agent is more highly skilled or more immediately operational than another merely because each took a different kind of leave. That conclusion is all the more compelling in so far as the condition at issue has the paradoxical effect of excluding certain agents, such as the applicant, even though, because their leave was shorter, they have spent more time in a Commission department during the last 12 months than other agents who are nevertheless eligible to apply for the internal competition in question. Moreover, that finding refutes the Commission’s assertion — made in response to a written question from the Court — that the condition at issue made it possible to give agents who had demonstrated, through their service and actual performance as most recently assessed and thus in the most reliable manner possible, that they deserved to be appointed as an established official, the opportunity to be so appointed.