ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Fifth Chamber) of 27 September 2007 – La Mer Technology v OHIM – Laboratoires Goëmar (LA MER)

(Case T-418/03)

Community trade mark – Opposition proceedings – Application for Community word mark LA MER – Earlier national word mark LABORATOIRE DE LA MER – Relative ground for refusal – Genuine use of the mark – Article 43(1) and (2) of Regulation (EC) No 40/94 – No likelihood of confusion – Article 8(1)(b) of Regulation No 40/94

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 114, 127, 129-130)

Re:

ACTION for annulment of the decision of the Second Board of Appeal of OHIM of 23 October 2003 (Case R 814/2000‑2) relating to opposition proceedings between Laboratoires Goëmar and La Mer Technology, Inc.

Information relating to the case

Applicant for the Community trade mark: La Mer Technology, Inc. Community trade mark sought: Word mark LA MER for goods in Class 3 Proprietor of the mark or sign cited in the opposition proceedings: Laboratoires Goëmar Mark or sign cited in opposition: International and national word mark LABORATOIRE DE LA MER for goods in Classes 3, 5, 29 and 31 Decision of the Opposition Division: Opposition upheld. Application for registration dismissed in its entirety Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Keywords

Summary



Keywords

1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Use in a form differing in elements which do not alter the distinctive character of the mark

(Council Regulation No 40/94, Arts 15(2)(a) and 43(2) and (3)

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 – Word mark Online Bus and figurative mark including the word ‘BUS’

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

1. By virtue of the combined application of Article 15(2)(a) and Article 43(2) and (3) of Regulation No 40/94 on the Community trade mark, proof of genuine use of an earlier national or Community trade mark on which opposition proceedings against an application for a Community trade mark are based also includes proof of use of the earlier mark in a form that differs in respect of elements which do not alter the distinctive character of that trade mark in the form registered.

As regards an earlier national trade mark, the provisions of the national law of the Member State where that mark is registered are not relevant for the purposes of assessing such a use.

(see paras 30-31)

2. There is a likelihood of confusion on the part of the German public between the word mark Online Bus, for which a Community trade mark application has been made for ‘market research and market analysis’ in Class 35 of the Nice Agreement, and the figurative mark including the word ‘BUS’, registered previously in Germany for, inter alia, ‘business consultancy’, in the same class. In the light of the high degree of similarity between the services in question and the high degree of oral similarity between the trade marks at issue, the mere visual difference between those trade marks created by the presence of the figurative element in the earlier mark is not such as to preclude a likelihood of confusion. The relevant consumer, faced by the trade marks in question, will remember only the word ‘bus’, which is present in both trade marks and dominates their pronunciation.

(see para. 80)
Keywords

Summary



Keywords

1. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits

2. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Abnormally low offer – Obligation of the contracting authority to hear from the tenderer

(Commission Regulation No 2342/2002, Art. 139)

3. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Award of contracts – Award criteria – Choice of the contracting authorities – Limit – Use of criteria enabling identification of the economically most advantageous offer – Admissibility of criteria not purely economic in nature

4. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Award of contracts – Evaluation of the offers on the basis of the offers themselves

Summary

1. The Commission enjoys a broad margin of assessment with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender, and review by the Court is limited to checking compliance with the procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers.

(see para. 47)

2. Regarding European Communities’ procurement contracts, Article 139 of Regulation No 2342/2002 laying down detailed rules on the implementation of the Financial Regulation, provides that the contracting authority is obliged to allow the tenderer to clarify, or even explain, the characteristics of its tender before rejecting it, if it considers that a tender is abnormally low. This should be interpreted in the sense that the obligation to check the seriousness of a tender arises where there are doubts beforehand as to its reliability. Thus, the main purpose of this article is to enable a tenderer not to be excluded from the procedure without having had an opportunity to explain the terms of its tender which appear abnormally low.

(see para. 49)

3. For the purposes of identifying the economically most advantageous tender, in the context of the procedure for awarding a contract following an invitation to tender, each of the award criteria used by the contracting authority does not necessarily have to be of a purely economic nature, since it cannot be excluded that factors which are not purely economic may influence the value of a tender from the point of view of the contracting authority.

(see para. 51)

4. In the context of the procedure for awarding a contract following an invitation to tender, the quality of tenders must be evaluated on the basis of the tenders themselves and not on that of the experience acquired by the tenderers with the contracting authority in connection with previous contracts or on the basis of the selection criteria (such as the technical standing of candidates) which were checked at the stage of selecting applications and which cannot be taken into account again for the purpose of comparing the tenders.

(see para. 86)
Keywords

Summary



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(1)(b))

Summary

A three-dimensional trade mark in the shape of a plastic bottle, with a stretched neck and flattened body, a roll and lateral hollows, for which registration is sought for foods for everyday consumption within Classes 29, 30 and 32 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, assessed by reference to the overall impression which it gives, since the only characteristic in which the trade mark sought differs from the usual shape of a bottle containing goods such as those covered by the trade mark application is constituted by the lateral hollows. Even if that feature could be considered unusual, alone it is not sufficient to influence the overall impression given by the trade mark sought to such an extent that it departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin.

(see paras 50, 52-54)
Keywords

Subject of the case

Operative part



Keywords

Procedure – Application initiating proceedings – Formal requirements (Rules of Procedure of the Court of First Instance, Art. 44(1)(c)) (see para. 60)

2. Agriculture – Common agricultural policy – EAGGF financing – Principles (Council Regulation No 1258/1999, Arts 1(2)(c) and 3(1)) (see para. 64)

3. Agriculture – Common agricultural policy – EAGGF financing – Support for rural development (Commission Regulation No 1750/1999, Arts 35(2) and (37)(1)) (see paras 69-78)

4. Agriculture – EAGGF – Clearance of accounts (Council Regulations Nos 729/70 and 1258/1999) (see paras 95-97)

Subject of the case

Re:

ACTION for partial annulment of Commission Decision 2004/457/EC of 29 April 2004 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 2004 L 202, p. 35) in as far as it excludes certain expenditure made by the Italian Republic.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Italian Republic 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 61-112

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 17 March 2004 (Case R 540/2002-4), relating to opposition proceedings between Ferrero OHG mbH and Cornu SA Fontain.

Information relating to the case

>lt>3

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the applicant to pay its own costs, the whole of the costs relating to the procedural issue concerning its substitution for Ferrero OHG mbH, and half of the costs incurred by the intervener;

3. Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay its own costs and half of those incurred by the intervener.
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 unregistered trade mark or other sign used in commerce (Council Regulation No 40/94, Art. 8(4)) (see paras 68-72)

2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an unregistered trade mark or other sign used in commerce (Council Regulation No 40/94, Art. 8(4)) (see para. 197)

Subject of the case

Re:

ACTION brought against five decisions of the Second Board of Appeal of OHIM of 3 December 2003 (Cases R 107/2003-2, R 111/2003-2, R 114/2003-2, R 115/2003-2 and R 122/2003-2), concerning opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.

Information relating to the case

>lt>2

Operative part

Operative part

The Court:

1. Dismisses the applications in Joined Cases T‑60/04 to T‑64/04;

2. Orders Budějovický Budvar, národní podnik 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 38-39

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 6 August 2004 (Case R 912/2002-2) concerning the application for registration as a Community trade mark of the word sign Caipi.

Information relating to the case

>lt>2

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the applicant to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Actions for annulment – Jurisdiction of the Community judicature – Claim seeking that directions be issued to an institution – Inadmissibility (Art. 230 EC) (see para. 48)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities (Arts 230, fourth para., EC and 249 EC; Council Regulation No 2580/2001; Council Decision 2004/306) (see paras 76-78)

3. Actions for annulment – Interest in bringing proceedings – Action brought against an implemented or interrupted measure (Art. 233 EC) (see paras 82-85)

4. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities – Minimum requirements (Art. 253 EC; Council Common Position 2001/931, Art. 1(4) and (6); Council Regulation No 2580/2001) (see paras 95-98)

5. Acts of the institutions – Statement of reasons – Obligation – Correction of an error of reasoning during the proceedings before the Court – Not permissible (Art. 253 EC) (see paras 99-101)

Subject of the case

Re:

ACTION for, first, the partial annulment of Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC (OJ 2004 L 99, p. 28), and of Regulation No 2580/2001 (OJ 2001 L 344, p. 70), and, secondly, damages.

Operative part

Operative part

The Court:

1. Annuls Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC in so far as it concerns KONGRA-GEL;

2. Orders the Council to bear, in addition to its own costs, all the costs incurred by the applicants;

3. Orders the United Kingdom of Great Britain and Northern Ireland to pay its own costs.
Keywords

Subject of the case

Operative part



Keywords

European Communities

–

Institutions

–

Right of public access to documents

–

Regulation No 1049/2001 (Art. 253 EC; European Parliament and Council Regulation No 1049/2001, Arts 2(3) and 4(1) to (6)) (see paras 38-46, 53-67, 69-73, 85-105, 153-155, 163

)

Subject of the case

Re:

APPLICATION for annulment of the Commission’s decision of 12 July 2004 refusing the applicant access to certain documents relating to the construction of the new Athens International Airport at Spata.

Operative part

Operative part

The Court:

1. Annuls the Commission’s decision of 12 July 2004 in so far as it concerns the refusal of access to the contract of 14 June 1996 signed between Athens International Airport SA and a consortium of companies led by Hochtief AG;

2. Dismisses the remainder of the action;

3. Orders Mr Ioannis Terezakis to bear one half of his own costs;

4. Orders the Commission to bear its own costs and pay one half of the costs incurred by Mr Terezakis.
Keywords

Subject of the case

Operative part



Keywords

Own resources of the European Communities

–

Repayment or remission of import or export duties

–

Fairness clause introduced by Article 239 of the Community Customs Code and Article 905 of implementing Regulation No 2454/93

–

Special situation (Decision No 1/94 of EC-Norway Joint Committee, Art. 17(7); Council Regulations No 2913/92, Art. 239, No 992/95 and No 3061/95, Art. 2; Commission Regulation No 2454/93, Art. 905(1); Council Decision No 95/312, Art. 5 and Annex I) (see paras 40-44, 48, 51, 53-54, 58-59, 61, 64-69

)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision REM 15/02 of 1 October 2004, finding that the repayment of import duties to the applicant, which are the subject of the application made by the Federal Republic of Germany, is not justified.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Nortrail Transport GmbH to pay its own costs and those incurred by the Commission.
Judgment of the Court of First Instance (First Chamber) of 15 March 2006 – Eurodrive Services and Distribution v OHIM − Gómez Frías (euroMASTER)

(Case T-31/04)

Community trade mark – Opposition proceedings – Application for the Community figurative mark euroMASTER – Earlier national word marks EUROMASTER – No similarity between the goods or services – Partial dismissal of the opposition – Article 8(1)(b) of Regulation (EC) No 40/94

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 30, 38, 45)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 12 November 2003 (Cases R 419/2001-1 and R 530/2001-1), relating to opposition proceedings between Jesús Gómez Frías and Eurodrive Services and Distribution NV.

Information relating to the case:

Applicant for the Community trade mark: Mr Jesús Gómez Frías Community trade mark sought: Figurative mark ‘euroMASTER’ – Application No 728.295 for services in Classes 39 and 41) Proprietor of the mark or sign cited in the opposition proceedings: Eurodrive Services and Distribution NV Mark or sign cited in opposition: Spanish, French, Austrian, Benelux, Danish, Finnish, English, Greek, Irish, Italian, Portuguese and Swedish word marks ‘EUROMASTER’, for goods and services in Classes 12, 16 and 37 Decision of the Opposition Division: The opposition was allowed as regards the services in Class 39 and rejected as regards the services in Class 41 Decision of the Board of Appeal: Rejection of the appeal brought by the applicant





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Fifth Chamber) of 16 November 2006 – Jabones Pardo v OHIM – Quimi Romar (YUKI)

(Case T-278/04)

Community trade mark – Opposition proceedings – Earlier national word mark YUPI – Application for the Community word mark YUKI – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Findings of OHIM – Admissibility

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 70)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 23 April 2004 (Joined Cases R 547/2003-1 and R 604/2003-1), relating to opposition proceedings between Jabones Pardo, SA and Quimi Romar, SL.

Information relating to the case

Applicant for the Community trade mark: Quimi Romar, SL Community trade mark sought: Word mark YUKI for goods in Classes 3, 5 and 28 – Application No 1353515 Proprietor of the mark or sign cited in the opposition proceedings: Jabones Pardo, SA Mark or sign cited in opposition: Spanish word mark YUPI No 246715 for goods in Class 3 Decision by the Opposition Division: Opposition partially upheld Decision of the Board of Appeal: Appeal by the applicant for the trade mark upheld; appeal by the opponent dismissed





Operative part

The Court:

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 23 April 2004 (Joined Cases R 547/2003-1 and R 604/2003-1) in so far as it allowed the intervener’s appeal concerning ‘soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’, falling within Class 3, and ‘sanitary preparations’, falling within Class 5, referred to in the Community trade mark application;

Orders OHIM to bear its own costs and pay half of the costs incurred by Jabones Pardo, SA;
Judgment of the Court of First Instance (Third Chamber) of 4 October 2006 – Freixenet v OHIM (Shape of a frosted matt black bottle)

(Case T-188/04)

Community trade mark – Shape of a frosted matt black bottle – Absolute ground of refusal – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character – Infringement of the rights of the defence – Article 73 of Regulation No 40/94

1. Community trade mark – Appeals procedure (Council Regulation No 40/94, Art. 63(3) and (6)) (see paras 15-18, 44-47)

2. Community trade mark – Decisions of the Office – Compliance with rights of the defence (Council Regulation No 40/94, Art. 73) (see paras 28-30, 41-42)

Re:

ACTION for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 104/2001-4) concerning registration of a mark in the form of a frosted matt black bottle as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Freixenet, SA Community trade mark sought: Three-dimensional mark in the shape of a frosted matt black bottle for goods in Class 33 – Application No 32540 Decision of the examiner: Refusal of registration Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 104/2001-4);

Dismisses the remainder of the action;
Judgment of the Court of First Instance (First Chamber) of 6 June 2007 – Greece v Commission

(Case T-232/04)

EAGGF – ‘Guarantee’ section – Community vineyard register – Decision ordering the reimbursement of sums paid as an advance

1. Agriculture – Common agricultural policy – EAGGF financing (Art. 10 EC; Council Regulations No 729/70, Arts 8(1) and 9, and No 2392/86, Arts (1) and 9(4)) (see paras 41-49)

2. Acts of the institutions – Statement of reasons – Obligation – Scope (Art. 253 EC) (see paras 61-63)

Re:

APPLICATION for annulment of Commission Decision 2004/302/EC of 30 March 2004 on a financial contribution from the Community to expenditure incurred by Greece in establishing the Community vineyard register (OJ 2004 L 98, p. 57).

Operative part

The Court:

Dismisses the action;
Judgment of the Court of First Instance (Second Chamber) of 12 September 2007 – Finland v Commission

(Case T-230/04)

EAGGF – Guarantee section – System of control of area aid in certain regions – Expenditure excluded from Community financing

1. Agriculture – EAGGF – Clearance of accounts (see paras 52, 159-161, 186-191)

2. Acts of the institutions – Statement of reasons – Obligation – Scope (Art. 253 EC) (see para. 184)

Re:

APPLICATION for annulment of Commission Decision 2004/136/EC of 4 February 2004 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 2004 L 40, p. 31) in so far as it excludes certain expenditure incurred by the Republic of Finland in connection with area aid in certain regions, because of the insufficiency of the system of control applied.

Operative part

The Court:

1. Dismisses the action;