ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (First Chamber) of 21 January 2014 — Bial-Portela v OHIM — Probiotical (PROBIAL)

(Case T‑113/12)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark PROBIAL — Earlier national, international and Community figurative marks, emblem, business name and logo Bial — Relative grounds for refusal — Article 8(1)(b), (4) and (5) 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 — Figurative mark PROBIAL — Word and figurative marks Bial (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33-43)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 December 2011 (Case R 1925/2010‑4) concerning opposition proceedings between Portela & Ca, SA and Probiotical SpA.

Operative part

The Court:

1. Dismisses the action;

2. Orders Bial-Portela & Ca, SA to pay the costs.

Judgment of the General Court (First Chamber) of 21 January 2014 — Bial-Portela v OHIM — Probiotical (PROBIAL)

(Case T‑113/12)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark PROBIAL — Earlier national, international and Community figurative marks, emblem, business name and logo Bial — Relative grounds for refusal — Article 8(1)(b), (4) and (5) 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 — Figurative mark PROBIAL — Word and figurative marks Bial (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33-43)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 December 2011 (Case R 1925/2010‑4) concerning opposition proceedings between Portela & Ca, SA and Probiotical SpA.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 26)

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 — Similarity between the goods or services in question — Criteria for assessment — Complementary nature of the goods (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 29)

3. Community trade mark — Lodging of the application for a Community trade mark — Identification of the goods or services concerned by the trade mark — Requirements of clarity and precision — Determination, by the competent authorities and the economic operators, of the extent of the protection conferred by the trade mark (Council Regulation No 207/2009, Art. 26(1)(c); Commission Regulation No 2868/95, Art. 1, Rule 2(2)) (see paras 34-37)

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 VOGUE and word mark VOGUE (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 50-54)

5. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal (Council Regulation No 207/2009, Art. 65) (see para. 55)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2012 (Case R 1170/2011-4), concerning opposition proceedings between Mr Eduardo López Cabré and Advance Magazine Publishers, Inc.

Operative part

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of OHIM of 26 March 2012 (Case R 1170/2011-4), concerning opposition proceedings between Mr Eduardo López Cabré and Advance Magazine Publishers, Inc., in so far as it confirmed the Opposition Division’s decision of 18 March 2011 upholding the opposition for accessories in Class 18 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2. Dismisses the remainder of the claim for annulment of the decision referred to at paragraph 1 of the operative part;

3. Declares that there is no need to adjudicate on the claim for the opposition to be upheld solely in relation to umbrellas, parasols and accessories for umbrellas and parasols;

4. Orders each party to bear its own costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Appeals procedure — Action before the EU judicature — Application initiating proceedings — Reply of the intervener — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not put forward in the application and the response — General reference to other documents — Inadmissibility (Rules of Procedure of the General Court, Arts 46(1)(b), and 135(1), second para.) (see paras 18-20)

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 — Weak distinctive character of the earlier mark — Relevance (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 29)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41, 42, 79)

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 ZENSATIONS and word mark ZEN (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 44-47, 80-84)

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 registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 76) (see para. 48)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 6 June 2012 (Case R 2212/2010‑1) relating to opposition proceedings between Shiseido Company Ltd and HP Health Clubs Iberia S.A.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Dismisses the heads of claims of Shiseido Company Ltd other than that essentially seeking the dismissal of the action as manifestly inadmissible;

3. Orders HP Health Clubs Iberia S.A. to bear its own costs and those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

4. Orders Shiseido Company Ltd to bear its own costs.
Keywords

Subject of the case

Operative part



Keywords

Actions for annulment — Interest in bringing proceedings — Action directed against a measure which has been repealed — Respective effects of repeal and annulment — Applicant maintaining an interest in obtaining annulment of the contested decision (Arts 264 TFEU and 266 TFEU; Council Decisions 2011/782/CFSP and 2012/335/CFSP) (see paras 35-41)

2. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Syria — Freezing of funds of certain persons and bodies in view of the situation in Syria — Judicial review — Scope — Restricted review for general rules — Review extending to the assessment of facts and verification of evidence for measures applying to specific entities (Art. 29 TEU; Art. 215(2) TFEU; Council Regulation No 544/2012; Council Decision 2012/335/CFSP) (see paras 54-57)

3. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Action for compensation for damage caused by an EU institution — No indications as to the character and extent of the damage suffered and the causal link — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 72-75, 83)

4. Judicial proceedings — Producing evidence — Time-limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court, Art. 48(1)) (see paras 76-79)

Subject of the case

Re:

Firstly, application for annulment of Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2012 L 165, p. 20, corrigendum OJ 2012 L 173, p. 27) and of Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria (OJ 2012 L 165, p. 80), in so far as they concern the applicant and, secondly, a claim for damages.

Operative part

Operative part

The Court:

1. Annuls Council Implementing Regulation (EU) No 544/2012 of 25 June 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria in so far as it relates to Syria International Islamic Bank PJSC;

2. Annuls Council Implementing Decision 2012/335/CFSP of 25 June 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria in so far as it relates to Syria International Islamic Bank;

3. Dismisses the claim for damages as inadmissible;

4. Orders Syria International Islamic Bank to bear one quarter of its own costs;

5. Orders the Council of the European Union to bear its own costs and to pay three quarters of those incurred by Syria International Islamic Bank.
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 — Assessment of the likelihood of confusion — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 35)
Judgment of the General Court (Sixth Chamber) of 9 July 2014 — Moonich Produktkonzepte & Realisierung v OHIM — Thermofilm Australia (HEATSTRIP)

(Case T‑184/12)

‛Community trade mark — Opposition proceedings — Application for Community word mark HEATSTRIP — Relative ground for refusal — Article 8(3) of Regulation (EC) No 207/2009 — Articles 75 and 76 of Regulation No 207/2009’

1. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties — Assessment by the Office of the materiality of the facts alleged and the probative value of the evidence adduced (Council Regulation No 207/2009, Art. 76(1)) (see para. 18)

2. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties — Well-known facts taken into account (Council Regulation No 207/2009, Art. 76(1)) (see para. 20)

3. Community 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 35‑37)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Absence of trade mark proprietor’s consent to registration applied for by an agent or representative in his own name — Agent or representative — Definition (Council Regulation No 207/2009, Art. 8(3)) (see paras 58, 59)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 26 January 2012 (Case R 1956/2010-1), relating to opposition proceedings between Thermofilm Australia Pty Ltd and Moonich Produktkonzepte & Realisierung GmbH.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 14 July 2014 — BSH v OHIM (Wash & Coffee)

(Case T‑5/12)

‛Community trade mark — Application for Community word mark Wash & Coffee — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Ex officio examination of the facts — Article 76(1) of Regulation No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24-26)

2. 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 — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27, 29)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 28)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark Wash & Coffee (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 31, 33-35, 39, 40)

5. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — Obligation to prove matters within common knowledge — None (Council Regulation No 207/2009, Art. 76(1)) (see paras 46, 47)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 November 2011 (Case R 992/2011-4) concerning an application for registration of the word sign Wash & Coffee as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 288, second para., EC) (see paras 28-33)

2. Non-contractual liability — Conditions — Real and certain damage caused by an illegal measure — Burden of proof — Communication to third parties by the Commission of information allegedly damaging the applicant’s reputation — Information referring to the existence of an investigation opened in its regard, but not to the charges raised or the rules in question — No real damage (Art. 288, second para., EC) (see paras 46, 58, 64)

3. Non-contractual liability — Conditions — Sufficiently serious breach of a rule of law conferring rights on individuals — Rule of law intended to confer rights on individuals — Concept — Principles of sound administration and proportionality — Not included (Art. 288, second para., EC) (see paras 76, 78)

4. Non-contractual liability — Conditions — Sufficiently serious breach of a rule of law conferring rights on individuals — Disclosure of non-confidential information in the context of a tendering procedure — No infringement of the obligation of business secrecy — Not included (Arts 287 EC and 288, second para., EC) (see paras 80-82, 93, 94)

Subject of the case

Re:

ACTION for compensation for the harm allegedly suffered due to the disclosure by the Commission in its letter of 3 July 2007 to third parties of certain information concerning an administrative investigation by the Commission in respect of the applicant and the applicant’s personnel recruitment policy.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.
Judgment of the General Court (Ninth Chamber) of 26 February 2015 — France v Commission

(Case T‑135/12)

‛State aid — Pensions — Aid for the reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom — Reduction of the compensation to be paid to the State by France Télécom — Decision declaring the aid compatible with the internal market under certain conditions — Advantage’

1. State aid — Concept — State intervention mitigating the burdens normally included in the budget of an undertaking — Reduction of staff remuneration costs — Included (Art. 107(1) TFEU) (see paras 33-36)

2. State aid — Concept — State intervention mitigating the burdens normally included in the budget of an undertaking — Included — Measure concerning the method of financing the retirements of officials attached to the beneficiary undertaking — Reduction in the consideration paid by the beneficiary undertaking to the State — Included (Art. 107(1) TFEU) (see paras 37-40)

3. State aid — Concept — State intervention mitigating the burdens normally included in the budget of an undertaking — Measure designed to compensate for a structural disadvantage constituted by additional obligations concerning the retirements of officials attached to the beneficiary undertaking — Included (Art. 107(1) TFEU) (see paras 41, 42)

4. State aid — Concept — Selective nature of the measure — Ad hoc measure concerning a single undertaking — Included — No need to compare the beneficiary with other operators in a comparable factual and legal situation having regard to the objective pursued by the measure (Art. 107(1) TFEU) (see paras 44, 45)

5. Actions for annulment — Actionable measures — Concept — Measures capable of affecting a given legal position — Action directed solely against the reasoning of a measure — Inadmissibility (Art. 263 TFEU) (see para. 51)

6. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(1) and (3) TFEU) (see paras 61-64)

7. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Application of fixed rates in the notice on reference rates — Lawfulness (Art. 107(3)(c) TFEU; Commission Notice 96/C 232/06) (see paras 98-104)

Re:

APPLICATION for annulment of Commission Decision 2012/540/EU of 20 December 2011 on State aid C 25/08 (ex NN 23/08) reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom implemented by the French Republic in favour of France Télécom (OJ 2012, L 279, p. 1).

Operative part

The Court:

1. Dismisses the action;
An act whereby the Commission effects an out-of-court set-off between debts and claims arising from different legal relationships with the same person is a challengeable act for the purposes of Article 263 TFEU. It is in the context of such an action for annulment that it is for the Court to examine the legality of a decision to off-set in the light of the effects of the failure actually to pay the contested sums to the applicant.

If the express foundation of an action on Article 263 TFEU and the headings of the pleas submitted in support of the action call for the Court to exercise its powers to review the legality of a decision whereby the Commission effects an out-of-court set-off between debts and claims on the basis of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, in submitting a plea alleging a manifest error of assessment on the part of the Commission, the applicants must be considered to be seeking a declaration from the Court, under Article 272 TFEU, that the claim which the Commission alleges to have is non-existent.

Since under Article 272 TFEU the EU Court enjoys full jurisdiction, enabling it, unlike a court reviewing the legality of an act under Article 263 TFEU, to hear and determine any type of action under an arbitration clause, Article 272 TFEU constitutes the appropriate legal basis on which to adjudicate on a claim for a declaration that the contractual claim at issue is non-existent.

As regards the possibility of partial reclassification of an action as an action brought under Article 272 TFEU, it should be noted that when an action for annulment or an action for damages is brought before the Court when the dispute is, in point of fact, contractual in nature, the Court will reclassify the action, provided that the conditions for such a reclassification are satisfied. On the other hand, when faced with a dispute which is contractual in nature, the Court considers itself unable to reclassify an action for annulment either where the applicant’s express intention not to base his application on Article 272 TFEU precludes such a reclassification or where the action is not based on any plea alleging infringement of the rules governing the contractual relationship in question, whether they be contractual clauses or provisions of the national law designated in the contract.

It follows that reclassification of the action is possible, without the rights of defence of the defendant institution being affected, where, first, the express intention of the applicant does not preclude it and, secondly, at least one plea alleging infringement of the rules governing the contractual relationship in question is put forward in the application pursuant to the provisions of Article 44(1)(c) of the Rules of Procedure. Those two criteria are cumulative.

(see paras 53, 54, 57-60)
42

Furthermore, the argument put forward by the ECHA in its written pleadings and at the hearing that, in essence, it was obliged to pass on the full costs of the verification at issue, cannot justify the manifestly disproportionate amount of the administrative charge imposed on the applicant. First, the amount of the administrative charge imposed on the applicant in this case results from the specific method chosen by the ECHA to calculate that charge. In particular, the ECHA decided to pass the entire amount of the costs incurred in verifying the declarations of a larger sample of enterprises on enterprises which made false declarations and, in accordance with their actual size. In the present case, there is no evidence that a solution which respected the principle of proportionality as regards the applicant and which would enable the objectives of the legislation to be achieved did not exist. Second, the ECHA’s argument is inconsistent with the preparatory documents for the adoption of Decision MB/D/29/2010 (see paragraph 35 above) in which it was stated that if the ECHA did not detect any false declaration it would bear ‘the entire cost’ of the verification undertaken. Third, it must moreover be observed that Article 96(1) of Regulation No 1907/2006 provides that the revenue of the ECHA is to consist not only of fees paid by undertakings, but also from a subsidy from the European Union, entered in the general budget of the European Union (Commission Section) and any voluntary contribution from the Member States.