ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (First Chamber) of 3 February 2017 — Kessel medintim v EUIPO — Janssen-Cilag (Premeno)

(Case T‑509/15)

(EU trade mark — Opposition proceedings — Application for the EU word mark Premeno — Earlier national word mark Pramino — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Decision taken following the annulment by the General Court of an earlier decision — Right to be heard — Article 75 of Regulation No 207/2009)

1. EU trade mark—Procedural provisions—Decisions of the Office—Observance of the rights of the defence—Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 22, 23)

2. EU trade mark—Appeals procedure—Action before the EU judicature—Implementation of a judgment annulling a decision adopted by a Board of Appeal—New examination of the appeal—Observance of the rights of the defence (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 25, 26, 28)

3. Actions for annulment—Judgment annulling a measure—Effects—Obligation to implement—Scope—Both the operative part and the grounds of the judgment to be taken into account (Art. 266 TFEU) (see para. 32)

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 41-43, 72)

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 between the goods or services in question—Criteria for assessment—Complementary nature of the goods—Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 59, 60)

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 Premeno and Pramino (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 69, 71, 76, 77)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 2 July 2015 (Case R 349/2015-4), relating to opposition proceedings between Janseen-Cilag and Kessel medintim.

Operative part

The Court:

1. Dismisses the action;
2.

Plea of illegality—Scope—Measures the illegality of which may be pleaded—Measure of a general character as the basis for the contested measure (Art. 277 TFEU) (see para. 27)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to other documents — Inadmissibility

(Rules of Procedure of the General Court, Art. 177(1))

(see para. 14)
EU trade mark — Surrender, revocation and invalidity — Causes of revocation — Absence of genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment — Company name, commercial name or trade name

(Council Regulation No 207/2009, Arts 15(1), and 51(1)(a); Commission Regulation No 2868/95, Art. 1, Rules 22(3) and (4), and 40(5))

(see paras 29-35)
Judgment of the General Court (Seventh Chamber) of 13 July 2017 — Talanton v Commission

(Case T‑65/15)

(Arbitration clause — Pocemon contract — Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — Eligible costs — Recovery of sums paid — Abuse of contractual rights — Principle of good faith — Legitimate expectations — Burden of proof — Counterclaim)

1. Judicial proceedings — Measures of inquiry — Expert’s report — Discretion of the General Court (Rules of Procedure of the General Court, Arts 88 and 91(e)) (see para. 36)

2. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Justification of costs incurred — Proceedings by the Commission for recovery of advances paid — Allocation of the burden of proof (Art. 272 TFEU; European Parliament and Council Decision No 1982/2006) (see paras 54, 85, 97)

3. EU budget — EU financial assistance — Obligation on the beneficiary to comply with the conditions for grant of the assistance — Financing covering only expenses actually incurred — No demonstration that the expenses actually incurred — Ineligible expenses — Proper technical implementation of projects forming the subject-matter of EU financial assistance — Irrelevant (Art. 317 TFEU) (see para. 73)

4. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application based — Plea not supported by precise arguments — Inadmissibility (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court (1991), Art. 44(1)(c)) (see paras 99, 104)

Re:

First, application based on Article 272 TFEU seeking a declaration that the expenditure that the applicant declared in the context of grant agreement No 216088 relating to the implementation of the ‘Point-of-care monitoring and diagnostics for autoimmune diseases’ project, concluded in the context of the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013), was eligible and that the request, by the Commission, for recovery of the sum of EUR 273 289.63, pursuant to that grant agreement, amounted to a breach of the Commission’s contractual obligations, as well as, second, a counterclaim seeking an order requiring the applicant to pay the sum of EUR 253 289.63, together with interest and reduced by any later payments.

Operative part

The Court:

1. Dismisses the action;

2. Orders Talanton AE — Symvouleftiki-Ekpaideftiki Etaireia Dianomon, Parochis Ypiresion Marketing kai Dioikisis Epicheiriseon to reimburse to the European Commission the sum of EUR 253 289.63, paid pursuant to grant agreement No 216088 relating to the implementation of the ‘Point-of-care monitoring and diagnostics for autoimmune diseases’ project, together with late payment interest at the rate of 3.55% from 27 January 2015, reduced by the sum of EUR 5000 paid to the Commission on 4 May 2015, which is first set against late payment interest and then against the principal amount;
Judgment of the General Court (Seventh Chamber) of 27 April 2017 — BASF v EUIPO — Evonik Industries (DINCH)

(Case T‑721/15)

(EU trade mark — Invalidity proceedings — EU word mark DINCH — Absolute grounds for refusal — Descriptiveness — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Article 52(1)(a) of Regulation No 207/2009)

1. 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 — Aim — Need to preserve availability (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 18, 49)

2. 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 (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 19, 20, 24)

3. 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 — Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 21, 22)

4. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(c) of Regulation No 207/2009 — Assessment of the descriptive character of the trade mark — Criteria (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see para. 23)

5. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(c) of Regulation No 207/2009 — Word mark DINCH (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 38, 40-42, 50)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 September 2015 (Case R 2080/2014-1), relating to invalidity proceedings between Evonik Industries and BASF.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Appeal Chamber) of 17 January 2017 —

LP v Europol

(Case T‑719/15 P)

(Appeal — Civil Service — Temporary staff — Fixed-term contract — Decision not to renew — Implied rejection decision — Decision rejecting the complaint — Duty to state reasons — Duty to have regard for the welfare of staff)

1. Officials — Decision adversely affecting an official — Obligation to state reasons — Complete lack of reasoning — Regularisation during the proceedings — Not permissible (Art. 296 TFEU; Staff Regulations, Art. 25) (see para. 17)

2. Actions brought by officials — Prior administrative complaint — Rejection decision — Account taken of the reasoning therein (Staff Regulations, Arts 90 and 91) (see paras 18-20)

3. Judicial proceedings — Res judicata — Scope (see para. 25)

4. Appeal — Pleas in law — Plea submitted for the first time in the context of the appeal — Inadmissibility (see paras 43, 44)

5. Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Account taken of the interests of the staff member concerned — Limits (see paras 59-65, 69)

Re:

APPEAL lodged against the order of the European Union Civil Service Tribunal [confidential], ( 1 ) and seeking annulment of that order.

Operative part

The Court:

1. Dismisses the appeal;

2. Orders LP to bear his/her own costs and to pay the costs incurred by the European Police Office (Europol) in the present instance.

( 1 ) Confidential information hidden.
Acts of the institutions—Statement of reasons—Obligation—Scope—Restrictive measures against Belarus—Freezing of funds of certain persons and entities having regard to the situation in Belarus—Minimum requirements

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decision 2015/1957/CFSP; Council Regulation No 2015/1948)

(see paras 42-44)
Judgment of the General Court (Fifth Chamber) of 21 September 2017 — Novartis v EUIPO — Meda (Zymara)

(Case T‑214/15)

(EU trade mark — Opposition proceedings — Application for the EU word mark Zymara — Earlier EU word mark FEMARA — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76(1) of Regulation No 207/2009)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 21, 151)

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—Likelihood of confusion with the earlier mark—Assessment of the likelihood of confusion—Attention level of the public—Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 39, 40, 45-47)

3. 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 para. 49)

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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 72, 75, 83)

5. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 108, 109)

6. EU trade mark—Decisions of the Office—Legality—EUIPO’s previous decision-making practice—Principle of non-discrimination—Irrelevant (Council Regulation No 207/2009) (see para. 115)

7. 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 Zymara and FEMARA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 155-158)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 6 February 2015 (Case R 550/2014-5) relating to opposition proceedings between Novartis and Meda.

Operative part

The Court:

1. Dismisses the action;
EU trade mark—Appeals procedure—Action before the EU judicature—Limitation of the list of products and services after the decision of the Board of Appeal—Consequences

(Rules of Procedure of the General Court, Art. 188; Council Regulation No 207/2009, Art. 43(1))

(see paras 25-28)
Although the date of filing the application for registration of an EU trade mark is the relevant date for examining the absolute ground for refusal referred to in Articles 7(1)(c) and 52(1)(a) of Regulation No 207/2009 on the EU trade mark, material which, although subsequent to the date of filing of the application for registration, enables conclusions to be drawn with regard to the situation as it was on that date can, without erring in law, be taken into consideration.

(see para.t 51)
An action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure.

In that regard, an applicant retains an interest in seeking annulment of the act of an EU institution to prevent its alleged unlawfulness recurring in the future. However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances which have given rise to the action brought by the applicant.

That is the case where, in respect of an action brought against a decision refusing access to documents concerning an ongoing legislative procedure, the allegation of unlawfulness is based on an interpretation of one of the exceptions provided for in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the institution to which the application for access is made is very likely to rely on again at the time of a new request, particularly since part of the grounds for the refusal to grant access set out in the contested decision are universally applicable to any application for access to the work of ongoing trilogues.

Moreover, in so far as both the initial application and confirmatory application explicitly seek for a certain number of documents to be disclosed relating to on-going legislative procedures and the institution concern has granted only partial access to those documents, the making available to the public of the documents at issue after the legislative procedure to which they relate has come to an end does not give full satisfaction to the applicant on account of the purpose of his applications, so that he retains an interest in seeking the annulment of the contested decision.

(see paras 29, 32, 33)
Judgment of the General Court (Seventh Chamber) of 1 March 2018 –

Poland v Commission

(Case T‑316/15)

(ERDF — Refusal to confirm a financial contribution to a major project — Article 40(g) of Regulation (EC) No 1083/2006 — Justification for the public contribution — Article 41(2) of Regulation No 1083/2006 — Time-limit not respected)

1. Economic, social and territorial cohesion—Structural assistance—European Union funding—Major projects—Assessment—Discretion of the Commission—Judicial review—Limits (Council Regulation No 1083/2006, Art. 41) (see paras 40-44)

2. Actions for annulment—Contested act—Assessment of legality in the light of the information available at the time of adoption of the measure (Art. 263 TFEU) (see para. 46)

3. Economic, social and territorial cohesion—Structural assistance—European Union funding—Major projects—Assessment—Criteria for assessment (Council Regulation No 1083/2006, Arts 40, first para., (g) and 41(1)) (see paras 61, 71, 73)

4. Actions for annulment—Subject-matter—Decision based on several pillars of reasoning, each sufficient to justify the operative part—Annulment of such a decision—Conditions (Art. 263 TFEU) (see para. 91)

5. Economic, social and territorial cohesion—Structural assistance—European Union funding—Major projects—Assessment—Time-limit—Exceeded—Consequences—Annulment—Conditions (Council Regulation No 1083/2006, Art. 41(2)) (see paras 100, 104, 105, 110, 120-122, 124, 125, 131)

6. Member States—Obligations—Duty of sincere cooperation with the EU institutions—Reciprocity (Art. 4(3) TEU) (see para. 133)

Re:

Application based on Article 263 TFEU and seeking annulment of Commission Decision C(2015) 2230 of 31 March 2015 refusing to confirm to the Republic of Poland a financial contribution from the European Regional Development Fund (ERDF) to the major project ‘Creation of Innovative Services at the IBM Shared Services Centre in Wrocław’ under Priority Axis No 4 of the operational programme ‘Innovative Economy’.

Operative part

The Court:

1. Dismisses the action;
Under Article 108(2) TFEU, the Commission is required to give notice to the parties concerned to submit their comments during the formal investigation phase. The sole aim of that communication is to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action. The Commission must, without being required to present a complete analysis of the aid in question, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to submit their comments. For that purpose, it is sufficient for the parties concerned to be aware of the reasoning that has led the Commission to conclude provisionally that the measure at issue might constitute new aid incompatible with the internal market. The obligation on the Commission to place the interested parties in a position, at the stage of the initiating decision, to submit their comments, is an essential procedural requirement, the infringement of which has consequences, such as the annulment of the defective act, irrespective of whether that infringement caused harm to the person pleading it or whether the administrative procedure might have led to a different result.

(see paras 46, 47, 70)
State aid — Administrative procedure — Obligations of the Commission — Possibility for the beneficiary of aid to rely on rights as extensive as defence rights as such — Absence — Right of the beneficiary of aid to be sufficiently associated with the proceedings — Scope

(Art. 108(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 41)

(see paras 53-56, 58, 69, 72)
41

The laudatory and promotional meaning of the sign applied for, perceived immediately and understood as such by the relevant public, eclipses any indication of the commercial origin of the goods concerned, so that the mark will not be remembered by the relevant public as an indication of provenance. It must be noted that, according to the case-law, the fact that the mark applied for is capable of having several meanings does not necessarily imply in itself that it has a degree of distinctive character when it is perceived immediately by the relevant public as a promotional message and not as an indication of the origin of the goods or services at issue (judgment of 8 October 2015 in Société des produits Nestlé v OHIM (NOURISHING PERSONAL HEALTH), T‑336/14, not published, EU:T:2015:770, paragraph 41). Even if the fact that the mark applied for can have a number of meanings is one of the characteristics which is likely, as a rule, to endow the sign with distinctive character, it is not the decisive factor in establishing that the sign has such a distinctive character (judgment of 29 January 2015 in INVESTING FOR A NEW WORLD, T‑59/14, not published, EU:T:2015:56, paragraph 38).
55

That assessment is not vitiated by any error. As the Board of Appeal commented, the expression ‘start-up’ has now entered into everyday language in Italy, as in other Member States, to a sufficient degree that it could be held to be understandable even to a non-English-speaking section of the public. Besides the fact that the applicant relied on examples based on very specific categories of persons, the applicant did not provide any evidence to show that a large proportion of the relevant public would not know the term ‘start-up’, could not understand that term correctly and would not know the term ‘initiative’. Neither did the applicant show that the public who would know the terms ‘start-up’ and ‘initiative’ constituted a negligible proportion of the relevant public. It must be recalled that, for a sign to fall within the scope of the prohibition in Article 7(1)(b) of Regulation No 207/2009, it is sufficient that a ground of refusal exists in relation to a non-negligible proportion of the target public and it is unnecessary to examine whether the other consumers belonging to the relevant public are also aware of that sign (see, to that effect, judgment of 25 November 2015, bd breyton-design v OHIM (RACE GTP), T‑520/14, not published, EU:T:2015:884, paragraph 29 and the case-law cited). In addition, it should be noted that, under Article 7(2) of Regulation No 207/2009, Article 7(1) of that regulation applies notwithstanding that the grounds of non-registrability obtain in only part of the Union.