ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fifth Chamber) of 16 July 2014 — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE)

(Case T‑36/13)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark ANTONIO BACIONE — Earlier Community figurative mark erreà and earlier national figurative mark representing two overlapping lozenges — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctive character or the repute of the earlier mark — Article 8(5) of Regulation No 207/2009’

1. 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), and (2)(a)(ii)) (see paras 16-18, 20, 71)

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 — Refusal to register on a ground relating to refusal even limited to part of the Union (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

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 — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 24-26, 33)

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 registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark ANTONIO BACIONE — Figurative mark erreà and figurative mark presenting two partially fused lozenges (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 47-53, 63-68, 77)

5. 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 (Council Regulation No 207/2009, Art. 8(5)) (see para. 83)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 24 October 2012 (Case R 1561/2011-1) concerning opposition proceedings between Erreà Sport SpA and Antonio Facchinelli.

Operative part

The Court:

1. Dismisses the action;
1.

Actions for annulment — Time-limits — Point from which time starts to run — Measure entailing restrictive measures against a person or body — Measure published and notified to the addressees — Date of notification of the measure — Notification to the person concerned by means of a publication in the Official Journal of the European Union — Period starting to run as from the fourteenth day following that publication (Art. 263, sixth para., TFEU; Rules of Procedure of the General Court, Art. 102(1); Council Decision 2010/413/CFSP, Art. 24(3); Council Regulation No 267/2012, Art. 46(3)) (see paras 34-49)
Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Brainlab v OHIM (Curve)

(Case T‑266/13)

‛Community trade mark — Application for Community word mark Curve — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Trade marks contrary to public policy or to accepted principles of morality — Examination by reference to the perception of the sign by the relevant public (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 14, 19, 28)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Trade marks contrary to public policy or to accepted principles of morality — Word mark Curve (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 15, 20-25, 29-37)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 March 2013 (Case R 2073/2012-4), concerning an application for registration of the word mark Curve as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;

2. Orders Brainlab AG to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2014 — Brainlab v OHIM (Curve)

(Case T‑266/13)

‛Community trade mark — Application for Community word mark Curve — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Trade marks contrary to public policy or to accepted principles of morality — Examination by reference to the perception of the sign by the relevant public (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 14, 19, 28)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Trade marks contrary to public policy or to accepted principles of morality — Word mark Curve (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 15, 20-25, 29-37)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 March 2013 (Case R 2073/2012-4), concerning an application for registration of the word mark Curve as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Judicial proceedings — Application initiating proceedings — Formal requirements — Annexes of the contested measure not submitted — Admissibility where the other parties not inconvenienced (Statute of the Court of Justice, Art. 21, second para.; Rules of Procedure of the General Court, Art. 44(4)) (see paras 27-34)

2. State aid — Recovery of unlawful aid — Obligation — Beneficiary subject to a collective procedure — Inscription of the aid in the schedule of debts — Collective procedure not seeking the liquidation of the beneficiary — Recovery obligation not complied with (Art. 88(2) EC) (see paras 55-67)

3. State aid — Recovery of unlawful aid — Obligation — Difficulties in implementing — Obligation of the Member State to take all reasonable steps necessary for the purposes of recovery — Burden of proof on the Member State (Art. 88(2) EC) (see paras 76-84)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Execution of a judgment of the Court of Justice imposing a periodic penalty payment on a Member State — Decision quantifying the amount of the periodic penalty payment (Art. 296, second para., TFEU) (see paras 90, 91)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision C(2013) 1264 final of 7 March 2013 ordering the Italian Republic to pay into the ‘European Union own resources’ account the sum of EUR 16 533 000 by way of liquidate penalty.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Italian Republic to pay the costs.
Case T‑53/13

(publication by extracts)

Vans, Inc.

v

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

‛Community trade mark — Application for the Community figurative mark representing a wavy line — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 — Article 76 of Regulation No 207/2009 — Article 75 of Regulation No 207/2009’

Summary — Judgment of the General Court (Fifth Chamber), 6 November 2014

Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — OHIM examining evidence superficially or not taking certain elements into account — No infringement of Article 76 of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 76(1))

According to Article 76(1) of Regulation No 207/2009 on the Community Trade mark, the examiners and the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are required to examine the facts of their own motion. It follows that the competent bodies of OHIM may be led to base their decisions on facts which have not been put forward by the applicant for the mark. Furthermore, OHIM infringes Article 76 of Regulation No 207/2009 if it refuses to take into consideration arguments or items of evidence which the parties have submitted in due time.

A superficial examination of the evidence by the Board of Appeal cannot constitute an infringement of the procedural provision in Article 76 of Regulation No 207/2009. An incorrect assessment of the evidence provided by a party may, as the case may be, give rise to an infringement of the substantive provision applicable to the case.

The fact that the Board of Appeal has not reproduced all of the arguments of one party and the evidence provided by that party, or does not reply to each of those arguments and items of evidence, cannot by itself lead to a finding that the Board of Appeal has refused to take them into account.

Thus, the mere fact that the content of certain documents may have escaped the notice of the Board of Appeal is not capable of constituting an infringement of the procedural provision in Article 76 of Regulation No 207/2009. It constitutes an incorrect assessment of the evidence provided by the applicant which may, as the case may be, give rise to an infringement of a substantive provision. The possible consequences of that incorrect assessment are to be examined in the context of the justification of the latter’s decision.

(see paras 12, 17, 20-22)
Judgment of the General Court (Fifth Chamber) of 11 December 2014 — Oracle America v OHIM — Aava Mobile (AAVA CORE)

(Case T‑618/13)

‛Community trade mark — Opposition proceedings — Application for Community word mark AAVA CORE — Earlier Community word mark JAVA and well-known mark within the meaning of Article 6a of the Paris Convention JAVA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — No likelihood of association — Link between the signs — No similarity of the signs — Article 8(5) of Regulation No 207/2009’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to other documents not annexed to the application — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 14)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22-24, 64)

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 — Likelihood of confusion with the earlier mark — Word marks AAVA CORE and JAVA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 65, 66)

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 registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 29, 33)

5. 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 (Council Regulation No 207/2009, Art. 8(5)) (see para. 70)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 11 September 2013 (Case R 1369/2012-2), relating to opposition proceedings between Oracle America, Inc. and Aava Mobile Oy.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 4 December 2014 — Sales & Solutions v OHIM — Inceda (WATT and WATT)

(Joined Cases T‑494/13 and T‑495/13)

‛Community trade mark — Invalidity proceedings — Community figurative trade mark Watt and Community word mark Watt — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009’

1. 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 — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 16, 17)

2. 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 — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 18-21)

3. Community trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(c) of Regulation No 207/2009 — Word and figurative marks WATT (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 28, 32-34, 38, 43)

4. Community trade mark — Definition and acquisition of the Community trade mark — Prior registration of the trade mark in certain Member States — Relevance (see para. 45)

Re:

In Case T‑494/13, action brought against the decision of the Fourth Board of Appeal of OHIM of 15 July 2013 (Case R 1192/2012-4), and, in Case T‑495/13, action brought against the decision of the Fourth Board of Appeal of OHIM of 15 July 2013 (Case R 1193/2012-4), concerning invalidity proceedings between Inceda Holding GmbH and Sales & Solutions GmbH.

Operative part

The Court:

1. Dismisses the actions;
Joined Cases T‑492/13 and T‑493/13

(publication by extracts)

Schmidt Spiele GmbH

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

‛Community trade mark — Applications for figurative Community trade marks representing boards for parlour games — Absolute grounds for refusal — Lack of distinctive character — Regulation (EC) No 207/2009, Article 7(1)(b) and Article 7(3)’

Summary — Judgment of the General Court (First Chamber), 3 March 2015

Procedure — Oral part of the procedure — Lodging of an application to be heard — Timing and time-limit

(Rules of Procedure of the General Court, Arts 135(1) to (3), and 135a)

Pursuant to Article 135a of the Rules of Procedure of the General Court, after the submission of pleadings as provided for in Article 135(1) and, if applicable, Article 135(2) and (3), of the Rules of Procedure, the Court, acting upon a report of the Judge-Rapporteur and after hearing the parties, may decide to rule on the action without an oral procedure, unless one of the parties submits an application setting out the reasons for which he wishes to be heard. That application is to be submitted within a period of one month from notification to the party of closure of the written procedure.

A request submitted in the application is premature in the light of the provisions of Article 135a of the Rules of Procedure and cannot therefore be taken into consideration. According to the scheme and the wording of that article an application for a hearing, and the assessment by the Court of the benefits of a hearing, can only take place once the written procedure is closed and the parties and the Court are in possession of the complete case file and the arguments raised by all the parties, and are thus in a position to decide whether a hearing would be useful. Moreover, lodging of an application for a hearing before notification of the closure of the written procedure cannot be justified on the grounds of economy of procedure since, pursuant to Article 135a of the Rules of Procedure, the Court may, in any event, decide to rule without an oral procedure only after closure of the written procedure and after giving the parties the opportunity to take advantage of that provision.

(see paras 8-10)
Judgment of the General Court (Fourth Chamber) of 3 June 2015 —

Bora Creations v OHIM — Beauté prestige international (essence)

(Case T‑448/13)

‛Community trade mark — Invalidity proceedings — Community word mark essence — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — No distinctive character — Article 7(1)(b) of Regulation No 207/2009’

1. 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 — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 20, 28)

2. 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 21, 22, 29-31, 33, 34)

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 — Word mark essence (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 23, 45)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Overlap between the scope of the grounds for refusal set out in subparagraphs (b) and (c) of Article 7(1) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see para. 47)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 6 June 2013 (Case R 1085/2012‑5), relating to invalidity proceedings between Beauté prestige international and Bora Creations, SL.

Operative part

The Court:

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

Nutrexpa v OHIM — Kraft Foods Italia Intellectual Property (Cuétara Maria ORO)

(Case T‑218/13)

‛Community mark — Opposition proceedings — Application for Community figurative mark Cuétara Maria ORO — Earlier Community and national figurative marks ORO — Partial refusal of registration — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Appeals procedure — Action before the EU judicature — Claim appearing in the application and seeking to demonstrate genuine use of the earlier mark — Inadmissibility (Rules of Procedure of the General Court, Art. 135(4); Council Regulation No 207/2009, Arts 65(2), and 76) (see paras 22-24)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 29, 30, 54)

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 — Likelihood of confusion with the earlier mark — Figurative marks Cuétara Maria ORO and ORO (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53, 56-59)

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 registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Reference (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 55)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 11 February 2013 (Case R 2455/2011-1), relating to opposition proceedings between Kraft Foods Italia Intellectual Property Srl and Nutrexpa, SL.

Operative part

The Court:

1. Disjoins Case T‑218/13 from Case T‑217/13 for the purpose of the judgment;

2. Dismisses the action;
For the average EU consumer, there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark between the word sign AGRI.CAPITAL, registration of which as a Community trade mark is sought in respect of ‘real estate management and brokerage services’, ‘building promoter services’ and ‘development of usage concepts services’ in Class 36 of the Nice Agreement, and the earlier Community word marks AgriCapital and AGRICAPITAL in respect of financial services within the same Class, since the services covered by the earlier marks are not similar to the services covered by the trade mark applied for. That lack of similarity cannot be offset for the purposes of the assessment of the likelihood of confusion, by similarity, even of a high degree, between the marks at issue.

(see paras 27, 28, 70, 75, 76)
The figurative mark HOT should not have been registered as a Community trade mark in respect of ‘massage oils, gels’ falling within Class 3 of the Nice Agreement and for ‘lubricants for pharmaceutical purposes’ falling within Class 5 of the said Agreement by reason of the existence of the absolute ground for refusal referred to in Article 7(1)(c) of Regulation No 207/2009 on the Community trade mark.

From the point of view of the relevant public constituted by English-speaking consumers, the word ‘hot’ must be considered to designate the effects caused by ‘massage oils, gels’ and ‘lubricants for pharmaceutical purposes’. Those goods, whether or not they are adapted for medical use, are all intended to be spread over the skin by more or less repetitive movements creating a sensation of heat.

On the other hand, that mark is not descriptive of ‘bleaching and laundry preparations; soaps’ in Class 3 of the Nice Agreement and ‘nutritional supplements (for medical use)’ in Class 5 thereof. The word ‘hot’ cannot be regarded as designating the high temperature of the said products. Those products, which concern the care of laundry and the care and nutrition of persons do not, by nature, have a high temperature. On the contrary, for some of them, such as soaps, such a temperature even risks causing them to deteriorate.

Nor, moreover, does the word ‘hot’ designate the temperature of use of the products concerned. Whilst some of them may be used at a high temperature, such as ‘bleaching and laundry preparations’ or ‘nutritional supplements’, that condition of use does not characterise those goods, which can be used just as well at low temperatures.

Finally, the positive connotation of the other meanings of the word ‘hot’, namely ‘fashionable’, ‘attractive’ and ‘sexy’ is more a vague and indirect evocation than a direct and immediate designation of a quality or characteristic of the products concerned.

(see paras 37, 40, 49-51)