ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 13 April 2010 – Esotrade v OHIM – Segura Sánchez (YoKaNa)

(Case T-103/06)

Community trade mark – Opposition proceedings – Application for Community figurative mark YoKaNa – Earlier Community and national figurative marks YOKONO – Relative grounds for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 34, 43)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 10 January 2006 (Case R 217/2004-2), concerning opposition proceedings between Antonio Segura Sánchez and Esotrade SA.

Information relating to the case

Applicant for the Community trade mark: Esotrade, SA Community trade mark sought: Figurative mark YoKaNa for goods in Classes 14, 18 and 25 – Application No 1600659 Proprietor of the mark or sign cited in the opposition proceedings: Antonio Segura Sánchez Mark or sign cited in opposition: Figurative Community and Spanish trade marks YOKONO for goods in Classes 25 (No 1099356) and 18, 25 and 39 (No 336750) Decision of the Opposition Division: Opposition upheld in part; registration refused for certain goods in Classes 18 and 25 Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 24 March 2011 – IMI and Others v Commission

(Case T-378/06)

Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Fines – Relevant turnover – Leniency Notice – Guidelines on the method of setting fines – Equal treatment

1. Procedure – Objection of lis pendens – Same parties, subject-matter and submissions in two actions – Inadmissibility of the second action (see para. 29)

2. Competition – Fines – Amount – Determination – Discretion of the Commission – Limits – Respect for the principle of equal treatment (Council Regulation No 17, Art. 15(2)) (see paras 40-42)

3. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – Increase by 10% of the starting amount per year – Discretion of the Commission (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03, Section 1B) (see paras 57-58)

Re:

APPLICATION for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F‑1/38.121 – Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 16 November 2011 – Low & Bonar and Bonar Technical Fabrics v Commission

(Case T-59/06)

Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Single and continuous infringement – Fines – Mitigating circumstances – Passive role – Proportionality – Equal treatment – Unlimited jurisdiction

1. Actions for annulment – Admissibility – Decision imposing a fine for infringement of the competition rules – Action seeking to obtain reimbursement of default interest borne by an undertaking by reason of payment of the fine – Inadmissibility (Art. 230 EC) (see paras 23-26)

2. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria – Burden of proof (Art. 81(1) EC) (see paras 61-62, 64)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 73-74, 79)

Re:

APPLICATION for annulment in part of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), concerning a cartel on the market for plastic industrial bags, and, in the alternative, for annulment or reduction of the fine imposed on the applicants.

Operative part

The Court:

1. Sets the amount of the fine imposed by Article 2(l) of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) at EUR 9.18 million;

2. Dismisses the action as to the remainder;
Judgment of the General Court (Fourth Chamber) of 6 March 2012 — FLSmidth v Commission

(Case T-65/06)

Competition — Agreements, decisions and concerted practices — Plastic industrial bags sector — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Duration of the infringement — Fines — Gravity of the infringement — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Joint and several liability

1. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries — Holding company holding 100% of the capital of an interposed company holding all the capital of a group subsidiary — Evidential obligations of the company seeking to rebut that presumption (Art. 81(1) EC) (see paras 22-24, 26-40)

2. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see para. 35)

3. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 57-59, 63)

4. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic unit acting as an undertaking — Limits (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 5) (see paras 78-79)

5. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Conditions — Parent company and subsidiaries — Individual assessment of the cooperation of those companies (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04, Title D, Section 2) (see paras 83-86, 88-96)

Re:

APPLICATION for the partial annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 — Industrial bags) and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Annuls Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 — Industrial bags) in so far as it holds FLSmidth & Co. A/S liable for the single and continuous infringement referred to in Article 1(1) thereof, for the period from 31 December 1990 to 31 December 1991;

2. Sets the amount for payment of which FLSmidth & Co. is held jointly and severally liable under Article 2(f) of Decision C(2005) 4634 at EUR 14.45 million;

3. Dismisses the action as to the remainder;
Keywords

Subject of the case

Operative part



Keywords

European Communities’ public procurement

–

Tendering procedure (Council Regulation No 1605/2002, Arts 93(1)(c) and 94; Commission Regulation No 2342/2002, Art. 133) (see paras 59-77

)

Subject of the case

Re:

ANNULMENT of the decision of the Parliament rejecting the tender submitted by the applicant and awarding the contract to another tenderer in the call for tenders procedure concerning the repair and maintenance of automatic equipment, joinery and similar equipment in European Parliament buildings in Brussels.

Operative part

Operative part

The Court:

1. Annuls the decision of the Parliament rejecting the applicant’s tender and awarding the contract to another tenderer in the call for tenders procedure concerning the repair and maintenance of automatic equipment, joinery and similar equipment in European Parliament buildings in Brussels;

2. Orders the Parliament to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Seperate examination of the grounds for refusal in relation to each of the products or services referred to in the application registration – Duty to state reasons for a refusal of registration (Council Regulation No 40/94, Art. 7(1)) (see para. 22)

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 29-39)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 31 May 2007 (Case R 108/2007-2) concerning an application to register the figurative mark Intelligent Voltage Guard as a Community trade mark.

Information relating to the case

>lt>12

Operative part

Operative part

The Court:

1. Dismisses the application;

2. Orders TridonicAtco & Co. KG to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 20, 22, 25

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 June 2007 (Case R 299/2007-4) concerning the registration of the word sign Patentconsult as a Community trade mark.

Information relating to the case

>lt>19

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Mr Volker Mergel, Mr Klaus Kampfenkel, Mr Burkart Bill and Mr Andreas Herden to pay the costs.
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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 24-25, 37

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 25 April 2007 (Case R 844/2006-1), concerning opposition proceedings between Banco Bilbao Vizcaya Argentaria, SA and ecoblue AG.

Information relating to the case

>lt>13

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders ecoblue AG to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(3)) (see paras 18, 23-26

)

Subject of the case

Re:

ACTION against the decision of the Second Board of Appeal of OHIM of 3 September 2007 (Case R 670/2007-2) relating to the registration of the word sign NEW LOOK as a Community trade mark.

Information relating to the case

>lt>19

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders New Look Ltd to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 24, 37

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 31 May 2007 (Case R 1281/2006-1) concerning the registration of the word mark ‘AIRSHOWER’ as a Community trade mark.

Information relating to the case

>lt>4

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Hansgrohe AG to pay the costs.
Case T-189/07

Frosch Touristik GmbH

v

Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community trade mark — Invalidity proceedings — Community word mark FLUGBÖRSE — Material date for the examination of an absolute ground for invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)’

Judgment of the Court of First Instance (Fifth Chamber), 3 June 2009 II ‐ 1505

Summary of the Judgment

Community trade mark — Surrender, revocation and invalidity — Absolute grounds of invalidity

(Council Regulation No 40/94, Art. 51(1)(a))

The relevant date for the purposes of the assessment of an application for a declaration of invalidity under Article 51(1)(a) of Regulation No 40/94 on the Community trade mark is the date of filing of the application for the mark at issue. The fact that the case-law allows material subsequent to that date to be taken into account, far from weakening that interpretation of that article, reinforces it, since it is only possible to take such material into account if it relates to the situation on the date of filing of the trade mark application. That interpretation of Article 51(1)(a) of Regulation No 40/94 is the only interpretation which avoids a situation in which the probability of the mark losing its registrability increases with the length of the registration procedure. An interpretation under which the necessary conditions must be met at the time of the application for registration and must continue to be met up until registration of the mark would amount, conversely, to making the registration of the mark dependent, in part, on a contingency, namely the length of the registration procedure. In that regard, it should be noted that that consideration, relating to the length of the registration procedure, is one of the reasons why Article 7(3) of Regulation No 40/94 has been interpreted as requiring that the acquisition of distinctive character through use take place before the filing of the trade mark application.

(see paras 19, 20)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 25, 27, 37, 40

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 July 2007 (Case R 454/2006-4) concerning the registration of the word sign ALLSAFE as a community trade mark.

Information relating to the case

>lt>3

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Ordres allsafe Jungfalk GmbH & Co. KG to pay the costs.
Where registration of a Community trade mark or the protection in the European Community of an international registration has been sought in respect of all goods falling within a category without distinguishing between those goods, the fact that the mark in question is devoid of any distinctive character solely in relation to certain goods falling within that category does not preclude a finding that the mark in question lacks distinctive character in relation to all the goods in that category.

The word sign TAME IT, the registration of which is sought in respect of ‘essential oils, cosmetics, hair lotions’ in Class 3 of the Nice Agreement is devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

In relation to hair lotions, hair cosmetics and essential oils which may be used on hair, the mark applied for will be perceived by an average English-speaking consumer as an order or invitation to use those products in order to soften, control or make hair tractable. The semantic content of that mark thus indicates to the relevant consumer a positive characteristic of those products, relating to their market value, inasmuch as the softening or controlling of hair is an important function which the consumer seeks when he uses them.

Consequently, the mark TAME IT, in relation to hair lotions, hair cosmetics and essential oils which may be used on hair, and in so far as it incites the consumer to use those products and/or informs him about the desired effect of using them, will immediately be perceived by the relevant public as an advertising message rather than as an indication of the commercial origin of those products.

(see paras 25, 28)
Whilst Article 77a of Regulation No 40/94 on the Community trade mark does not expressly provide for partial revocation, the wording of that provision does not exclude it. In addition, Rule 53a of Regulation No 2868/95 implementing Regulation No 40/94 provides that, before proceeding with the revocation, the Office for Harmonization in the Internal Market (Trade Marks and Designs) is to ‘inform the party affected about the intended revocation’. The affected party may submit observations ‘on the intended revocation’ and, if the affected party does not agree to the revocation, OHIM is to take a decision ‘on the revocation’. The applicable procedure thus permits revocation, as necessary, to be limited to one party to the decision, provided that it complies with the adversarial principle.

An interpretation which admits of the possibility of partial rescission of decisions forms part of the spirit of Regulations No 40/94 and No 2868/95, which provide for the possibility of correction of decisions of OHIM before the dispute is heard on appeal, inter alia Article 60a of Regulation No 40/94, concerning revision, Rule 53 of Regulation No 2868/95, concerning correction of errors and Rule 53a of Regulation No 2868/95, concerning revocation.

(see paras 37, 39)
Judgment of the Court of First Instance (Seventh Chamber) of 23 September 2009 — France Télécom v OHIM (UNIQUE)

(Case T-396/07)

‛Community trade mark — Application for the Community word mark UNIQUE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009’

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 20-23)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 September 2007 (Case R 585/2007-2) concerning an application for registration of the word sign UNIQUE as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: France Télécom Community trade mark sought: Word mark UNIQUE for goods and services in Classes 9, 35 and 38 — Application No 5312392 Decision of the Examiner: Partial refusal of registration Decision of the Board of Appeal: Appeal dismissed

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Transport

–

Inland waterway transport

–

Structural improvement (Council Regulation No 718/1999, Art. 4(6)) (see paras 31-32, 36-37, 39-40

)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision SG (2007) D/200972 of 28 February 2007 not to grant to the vessel ‘Niclas’ the specialised vessels exemption, pursuant to Article 4(6) of Council Regulation (EC) No 718/1999 of 29 March 1999 on a Community-fleet capacity policy to promote inland waterway transport (OJ 1999 L 90, p. 1).

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Paul Mohr & Sohn, Baggerei und Schiffahrt to bear its own costs and pay those incurred by the European Commission.
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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 40‑42, 81

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 29 August 2007 (Case R 875/2006-2), relating to opposition proceedings between Creaciones Mirto SA and Maglificio Barbara Srl.

Information relating to the case

>lt>7

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Mirto Corporación Empresarial, SL to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Agriculture – EAGGF – Clearance of accounts – Limitation of refusal of financing – 24-month period – Point from which time starts to run – Communication by the Commission of the results of checks (Council Regulations Nos 729/70, Art. 5(2)(c) and 1258/1999, Art. 7(4), fifth para.) (see para. 39)

2. Agriculture – EAGGF – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Challenge by the Member State concerned – Burden of proof – Allocation between the Commission and the Member State (Council Regulations Nos 729/70 and 1258/1999) (see paras 51, 53-55)

3. Acts of the institutions – Regulations – Regulation prescribing specific control measures – No discretion of Member States – Non-implementation – Justification – Other system of control more efficient – Not permissible (see para. 56)

4. Actions for annulment – Jurisdiction of the Community judicature – Commission decision withdrawing Community financial assistance – No power to substitute another decision or vary the disputed decision – Pleas for reduction of the amount to be repaid – Inadmissibility (Art. 230 EC) (see para. 136)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision 2007/243/EC of 18 April 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2007 L 106, p. 55).

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Hellenic Republic to pay the costs.
Keywords



Keywords

Procedure — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Summary statement of pleas (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 28)

2. Competition — Administrative procedure — Examination of complaints — Taking into account the Community interest in investigating a case — Criteria for assessment — Discretion of the Commission — Limits — Judicial review (Arts 81 EC and 82 EC) (see paras 65-67, 80, 105)