ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 17 January 2012 — Kitzinger v OHIM — MDR and ZDF (KICO)

(Case T-249/10)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark KICO — Earlier national figurative mark and Community word mark KIKA — Relative ground for refusal — Likelihood of confusion — 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 207/2009, Art. 8(1)(b)) (see paras 20, 48)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 March 2010 (Case R 1388/2008-4), relating to opposition proceedings between, on the one hand, Mitteldeutscher Rundfunk and Zweites Deutsches Fernsehen and, on the other hand, Kitzinger & Co. (GmbH & Co. KG).

Operative part

The Court:

1. Dismisses the action;

2. Orders Kitzinger & Co. (GmbH & Co. KG) to pay the costs.

Judgment of the General Court (Second Chamber) of 17 January 2012 — Kitzinger v OHIM — MDR and ZDF (KICO)

(Case T-249/10)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark KICO — Earlier national figurative mark and Community word mark KIKA — Relative ground for refusal — Likelihood of confusion — 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 207/2009, Art. 8(1)(b)) (see paras 20, 48)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 March 2010 (Case R 1388/2008-4), relating to opposition proceedings between, on the one hand, Mitteldeutscher Rundfunk and Zweites Deutsches Fernsehen and, on the other hand, Kitzinger & Co. (GmbH & Co. KG).

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Economic and social cohesion – Structural assistance – European Union funding – Obligation on Member States to establish monitoring and control systems – Duty to keep records of the checks made – Scope (Council Regulation No 1260/1999; Commission Regulation No 438/2001, Art. 4) (see paras 33, 36, 39-40)

2. Economic and social cohesion – Structural assistance – European Union funding – Decision to reduce financial aid by reason of irregularities – Financial consequences not quantifiable – Blanket correction – Breach of principle of proportionality – None (Council Regulation No 1260/1999, Art. 39(2)(c) and (3); Commission Regulation No 438/2001, Art. 4) (see paras 51-52, 61)

3. Economic and social cohesion – Structural assistance – European Union funding – Decision to reduce financial aid by reason of irregularities – Obligations of the Commission – Duty to act within a reasonable time – Criteria for assessment (Council Regulation No 1260/1999, Arts 38(1) and 39(2)) (see paras 65-67, 73-76)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision C(2009) 10136 final of 18 December 2009 final applying financial corrections to the support from the Guidance Section of the EAGGF allocated to the Community initiative CCI 2000.ES.06.0.PC.003 (Spain — Leader+ Aragon).

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Kingdom of Spain to pay the costs.
That rule does not exclude taking into account costs generated by the environmental management of packaging where such costs are borne directly by the distributors and indirectly by the producer organisations. The only evidence required is evidence to show that the costs in question are borne, directly or indirectly, by the producer organisations.

It is apparent from a combined reading of the first subparagraph of Article 15(5) of Regulation No 2200/96 on the common organisation of the market in fruit and vegetables and Article 18(2)(c) of Regulation No 1433/2003 laying down detailed rules for the application of Regulation No 2200/96 as regards operational funds, operational programmes and financial assistance, that European Union financial assistance may be granted to a producer organisation in respect of an operational programme only on condition that evidence is provided that the expenditure under that programme has actually been incurred.

The European Union regulations concerning producer organisations are designed to ensure that such organisations operate democratically, in accordance with two principles. First, the producer members of the producer organisation must scrutinise their organisation and its decisions. Secondly, a producer organisation must include among its members at least five producers and none of those members may, in principle, have more than 20% of the voting rights.

In order to ensure that producer organisations operate democratically, it is necessary to take into account the identities of the individuals or legal persons holding the shares of the members of the producer organisations. If those identities are not checked it is possible that a particular individual or legal person holding the bulk, or even all, of the shares of several members of a producer organisation, so that it has control over those members, in particular over their decision-making processes, might be concealed behind those members. In such circumstances, the second principle referred to above is likely to be circumvented, since the apparent number of members of the producer organisation is not representative of the number of that organisation’s members that are genuinely independent.

In addition, under the second sentence of Article 14(2) of Regulation No 1432/2003 laying down detailed rules for the application of Regulation No 2200/96 regarding the conditions for recognition of producer organisations and preliminary recognition of producer groups, the increase by the Member State of the maximum percentage of 20% of the voting rights held by a single member must be proportionate to that member’s contribution to the value of the marketed production of the producer organisation. As a consequence, the Member State is required to take the necessary measures to prevent a single member from controlling more than 20% of the voting rights within the producer organisation.

(see paras 47-51, 53, 57, 59)
Keywords



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 207/2009, Art. 8(1)(b)) (see paras 25, 33‑35

)
Judgment of the General Court (Second Chamber) of 23 March 2012 – Barilla v OHIM – Brauerei Schlösser (ALIXIR)

(Case T-157/10)

‛Community trade mark — Opposition proceedings — Application for registration of the Community word mark ALIXIR — Earlier national word mark Elixeer — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — 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 207/2009, Art. 8(1)(b)) (see paras 29-31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 January 2010 (case R 820/2009-2), relating to opposition proceedings between Brauerei Schlösser GmbH and Barilla G. e R. Fratelli SpA.

Operative part

The Court:

1. Dismisses the action;

2. Orders Barilla G. e R. Fratelli SpA to pay the costs.

Judgment of the General Court (Second Chamber) of 23 March 2012 – Barilla v OHIM – Brauerei Schlösser (ALIXIR)

(Case T-157/10)

‛Community trade mark — Opposition proceedings — Application for registration of the Community word mark ALIXIR — Earlier national word mark Elixeer — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — 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 207/2009, Art. 8(1)(b)) (see paras 29-31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 January 2010 (case R 820/2009-2), relating to opposition proceedings between Brauerei Schlösser GmbH and Barilla G. e R. Fratelli SpA.

Operative part

The Court:

1. Dismisses the action;
Keywords



Keywords

Common commercial policy — Protection against subsidisation practices of non-Member States — Imposition of a definitive countervailing duty — Calculation error following incorrect information supplied by the main exporter (Council Regulation No 597/2009, Arts 15(1) and 30(1)) (see paras 37-42, 65, 66)

2. Common commercial policy — Protection against subsidisation practices of non-Member States — Course of the investigation — Communication to the parties concerned of the information gathered — Observations of the parties on the final information — Obligation on the Commission to take into account — Scope (Council Regulation No 597/2009, Art. 30(1), (2) and (5)) (see paras 68-87)

3. Common commercial policy — Protection against subsidisation practices of non-Member States — Course of the investigation — Powers of the Commission — Limits — Obligation of the undertakings concerned by a complaint to cooperate — Scope (Council Regulation No 597/2009, Arts 11(2) and 26) (see para. 80)

4. Common commercial policy — Protection against subsidisation practices of non-Member States — Course of the investigation — Obligation to check whether information provided by the parties concerned correct — Scope (Council Regulation No 597/2009, Art. 11(8)) (see paras 97-101, 104, 105)

5. Union law — Principles — Principle of sound administration — Duty of diligence — Administrative procedure — Investigation concerning subsidisation practices of non-Member States — Scope (see paras 112, 113)
Keywords



Keywords

Community trade mark

—

Definition and acquisition of the Community trade mark

—

Absolute grounds for refusal

—

Signs constituted solely by the shape of goods which is necessary to obtain a technical result

—

Definition (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paras 26-28

)
Cases T-537/10 and T-538/10

Ursula Adamowski

v

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

‛Community trade mark — Invalidity proceedings — Community word mark Fagumit and Community figurative mark FAGUMIT — Earlier national figurative mark FAGUMIT — Relative ground for invalidity — Article 8(3) and Article 165(4)(b) of Regulation (EC) No 207/2009’

Summary — Judgment of the General Court (Second Chamber), 29 November 2012

Community trade mark — Provisions relating to the enlargement of the Community — Community trade mark lodged or registered before 1 May 2004 — Declaration of invalidity cannot be made on the basis of an earlier national right registered, applied for or acquired in a new Member State prior to the date of accession — Aim

The purpose of Article 165(4)(b) of Regulation No 207/2009 on the Community trade mark is to exclude the possibility of a Community trade mark registered or filed before 1 May 2004 from being challenged solely on the basis of the accession of certain States to the European Union, when that possibility did not exist before that accession. The provision in question does not therefore seek to preclude the proprietor of a mark from making, after 1 May 2004, an application for a declaration of invalidity where it had been possible to do so before that date, such as an application on the basis of Article 53(1)(b) of that regulation. (see para. 18)

The ground of invalidity laid down in Article 53(1)(b) of Regulation No 207/2009 on the Community trade mark may be relied on by the proprietor of the mark referred to in Article 8(3) of that regulation, even if that mark was registered only in a country outside the European Union. Unlike Article 8(1), (2), (4) and (5) of Regulation No 207/2009, Article 8(3) of that regulation does not refer to marks registered in a Member State or having effect in such a State. Moreover, if registration of the mark in a Member State were a condition for the application of Article 8(3) of Regulation No 207/2009, that provision would overlap with Article 8(1) and (5). (see para. 19)
The wording used by the legislature in Article 20(1)(b) of Decision 2010/413, concerning restrictive measures against Iran and repealing Common Position 2007/140, in Article 7(2) of Regulation No 423/2007, concerning restrictive measures against Iran, in Article 16(2)(a) of Regulation No 961/2010, on restrictive measures against Iran and repealing Regulation No 423/2007 and in Article 23(2)(a) of Regulation No 267/2012, on restrictive measures against Iran and repealing Regulation No 961/2010, implies that the adoption of restrictive measures against a person or an entity on account of the support which that person or entity has allegedly given to nuclear proliferation presupposes that that person or entity has actually done so. By contrast, the mere risk that the person or entity concerned may in the future provide support for nuclear proliferation is not sufficient. Moreover, the adoption and maintenance of restrictive measures cannot validly be based on a presumption which has not been laid down by the relevant legislation and does not correspond to its objective. In that regard, if the Council considers that the relevant legislation does not enable it to intervene sufficiently effectively in order to combat nuclear proliferation, it is permissible for it to adapt that legislation in its role as legislator, subject to review of legality by the EU judicature, in order to enlarge the hypotheses in which restrictive measures may be adopted.

On the other hand, the desire to ensure that the restrictive measures have the broadest possible preventive effect cannot result in the legislation in force being interpreted contrary to its clear wording. Therefore, even if it appears appropriate to regard the fact that an entity has been involved in incidents concerning the shipment of military material in breach of the prohibition laid down by a UN Security Council resolution as increasing the risk that that entity may also be involved in incidents relating to the shipment of material linked to nuclear proliferation, that does not, as the relevant legislation now stands, justify the adoption and maintenance of restrictive measures against it.

(see paras 48, 57, 59, 62, 64-66)
Infringement of essential procedural requirements within the meaning of Article 263 TFEU constitutes a ground said to be of ‘public policy’, which must be raised by the judicature of the European Union of its own motion. The same goes for lack of competence, within the meaning of that article. In addition, the requirement that the European Union judicature should raise of its own motion a ground involving a question of public policy must be complied with in the light of the rule that the parties should be heard.

Non-compliance with a procedural rule constitutes, inter alia, a breach of essential procedural requirements where, if the rule had not been breached, the outcome of the procedure or the content of the adopted act could have been substantially different.

Where the result of an authorisation procedure for marketing genetically modified organisms, or the content of authorisation decisions adopted, could have been substantially different if the Commission had complied with the procedure under Article 5 of Decision 1999/468, the Commission, when it adopts decisions authorising marketing without submitting the amended drafts of those authorisation decisions to the competent regulatory committees for authorisation, infringes its procedural obligations under Article 5 of Decision 1999/468, the provisions of Directive 2001/18 on the deliberate release into the environment of genetically modified organisms and repealing Directive 90/220, and the provisions of Regulation No 1829/2003 on genetically modified food and feed, which refer thereto, and thereby infringes the essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU, which infringement the Court is required to raise of its own motion. Accordingly, such decisions are, in accordance with the first paragraph of Article 264 TFEU, null and void in their entirety.

(see paras 80, 84, 85, 87)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

—

Definition and acquisition of the Community trade mark

—

Absolute grounds for refusal

—

Signs constituted solely by the shape of goods which is necessary to obtain a technical result

—

Definition (Council Regulation No 207/2009, Art. 7(1)(e), (ii)) (see paras 26-28

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 20 May 2010 (Case R 1237/2008‑1), relating to invalidity proceedings between Pi-Design AG, Bodum France and Bodum Logistics A/S, of the one part, and Yoshida Metal Industry Co. Ltd, of the other.

Operative part

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 20 May 2010 (Case R 1237/2008‑1);

2. Orders OHIM to bear its own costs and to pay the costs of Yoshida Metal Industry Co. Ltd;

3. Orders Pi-Design AG, Bodum France and Bodum Logistics A/S to bear their own respective costs.
Judgment of the General Court (Third Chamber) of 13 June 2012 — Insula v Commission

(Case T-110/10)

‛Arbitration clause — Financing contract for research and development projects — El Hierro contract — Lack of supporting documents and non-compliance with the contractual requirements in respect of the declared expenses — Reimbursement of sums advanced — Counterclaim by the Commission’

1. Proceedings — Referral to the General Court under an arbitration clause — Contract subject to national law — Application of national provisions on jurisdiction — Exclusion (Art. 272 TFEU) (see para. 30)

2. Proceedings — Referral to the General Court under an arbitration clause — Contract providing for Community financial assistance for a research and development project — Claim for repayment of certain costs — Counterclaim with claim for interest for delay — Application of national law — Finding of non-compliance with contractual obligations — Commission’s right to repayment of the advance, plus interest for delay at the rate applied by the European Central Bank (Art. 272 TFEU; Commission Regulation No 2342/2002, Art. 86(2)) (see paras 29, 44, 66)

Re:

APPLICATION, submitted on the basis of Article 272 TFEU, seeking a declaration, first, that the Commission’s request for reimbursement of the sum of EUR 84 120 is unfounded and, second, that the Commission be ordered to issue a ‘credit note’ in the amount of EUR 84120.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Conseil scientifique international pour le développement des îles (Insula) to pay the European Commission the principal sum of EUR 84 120, increased by default interest at the rate of 2.5% per annum, from 26 January 2010 until full payment of that principal sum;

3. Dismisses the remainder of the Commission’s counterclaim;
Judgment of the General Court (Seventh Chamber) of 10 October 2012 — Sviluppo Globale v Commission

(Case T-183/10)

‛Public service contracts — Public procurement procedure — Supply of technical assistance to the Government of Syria — Rejection of the tender — Duty to state reasons’

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision under public contract award procedure to reject a tender — Decision to inform the persons concerned of the justifications for the measure taken so as to enable them to assert their rights — Assessment of compliance with that obligation having regard to information available to the applicant at the time the action was brought (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Regulation No 1605/2002, Art. 100(2); Commission Regulation No 2342/2002, Art. 149(2) and (3)) (see paras 16, 19-21, 35, 40, 41, 43)

Re:

ACTION for annulment of the Commission’s decision of 14 February 2010 not to accept the tender submitted by the consortium led by the applicant in the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to facilitate decentralisation and local development (OJ 2009/S 223-319862).

Operative part

The Court:

1. Annuls the Commission’s decision of 14 February 2010 not to accept the tender submitted by the consortium led by the applicant in the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to facilitate decentralisation and local development (OJ 2009/S 223-319862);
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 — Assessment of distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 45, 46)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 47-50)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Three-dimensional mark consisting in the shape of a handbag (Council Regulation No 207/2009, Art. 7(1)(b), and (3)) (see paras 53, 56, 63, 64, 70, 71, 87-89, 96-98, 101, 102)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 74-78)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 16 June 2010 (Case R 1247/2009-1), concerning an application for registration of a three dimensional sign in the shape of a handbag as a Community trade mark.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Bottega Veneta International Sàrl to pay the costs.