ddrg/super_eurlex huggingface dataset:
53

As a preliminary point, it should be noted that recital 128 of the contested implementing regulation states: ‘… when it comes to the elements taken into account for calculation of undercutting (in particular the export price), the Commission has to identify the first point at which competition takes (or may take) place with Union producers in the Union market. That point is in fact the purchasing price of the first unrelated importer because that company has in principle the choice to source either from the Union industry or from overseas suppliers. That assessment should be based on the export price at the Union frontier level which is considered to be a level comparable to the Union industry ex-works price. In the case of export sales via related importers, the point of comparison should be right after the good crosses the Union border, and not at a later stage in the distribution chain, e.g. when selling to the final user of the good. Thus, by analogy with the approach followed for the dumping margin calculations, the export price is constructed on the basis of the resale price to the first independent customer duly adjusted pursuant to Article 2(9) of the basic [regulation]. As that Article is the only provision in the basic [regulation] which gives guidance on the construction of the export price, the application thereof by analogy is justified. With regard to the underselling calculations, the Commission noted that the use of Article 2(9) of the basic [regulation] did not lead to any asymmetrical comparison (unlike the Jindal case) because for the underselling comparison the Union industry’s target price was constructed including manufacturing costs, SG&A [expenses] and target profit of the producing entity only, and thus, it is comparable to the constructed export price. In other words, the costs of related selling entities of the Union producers were not taken into account when comparing the Union industry’s target price with the constructed export price.’
Judgment of the General Court (Second Chamber) of 18 November 2020 –

LG Electronics v EUIPO – Staszewski (K7)

(Case T‑21/20)

(EU trade mark – Opposition proceedings – Application for EU word mark K7 – Earlier EU word mark k7 – Relative ground for refusal – Likelihood of confusion – Similarity of the goods – Article 8(1)(b) of Regulation (EU) 2017/1001)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 19, 20, 22, 58)

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 – Determination of the relevant public – Attention level of the public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 29-31, 33, 35, 36)

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 – Likelihood of confusion with the earlier mark – Word marks K7 and k7 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 38, 42, 55, 61, 63, 64)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 40)

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 concerned (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 46)

6. EU trade mark – Definition and acquisition of the EU trade mark – Assessment of the registrability of a sign – EU rules only taken into account – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies (see para. 62)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 31 October 2019 (Case R 401/2019-1), relating to opposition proceedings between Mr Staszewski and LG Electronics.

Operative part

The Court:

1. Dismisses the action;
1.

Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 November 2019 (Case R 404/2019-1) to the extent that the Board of Appeal dismissed the appeal brought by Puma SE in so far as the application for registration of the word sign PUMA-System as an EU trade mark covers the goods and services in Classes 7, 9, 16 and 42 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, corresponding, for each of those classes, to the following description: – Class 7: ‘power screwdriver’; – Class 9: ‘computer hardware’, ‘computers’, ‘data-processing equipment and computers’, ‘computer peripheral devices’, ‘peripherals adapted for use with computers’, ‘magnetic and optical data carriers’, ‘printers for computers’, ‘heatdetectors’ and ‘measuring instruments’; – Class 16: ‘catalogues relating to computer software’, ‘computer software operating manuals’, ‘instruction manuals’, ‘instruction manuals for personal computers, mobile telephones and palmtop computers’ and ‘books’; – Class 42: ‘updating and maintenance of computer software and programs’, ‘configuring computer hardware using software’, ‘configuration of computer networks by software’, ‘configuration of computer software’, ‘computer hardware and software consultancy’ and ‘computer software technical support services’.
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 – Determination of the relevant public – Attention level of the public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 17)
Judgment of the General Court (Second Chamber) of 28 April 2021 –

France Agro v EUIPO – Chafay (Choumicha Saveurs)

(Case T‑311/20)

(EU trade mark – Invalidity proceedings – EU figurative mark Choumicha Saveurs – Absolute ground for refusal – Bad faith – Declaration of invalidity – Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Concept of bad faith – Scope (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 21-23)

2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Intention of the applicant (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 24, 41, 55)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Figurative mark Choumicha Saveurs (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 32-35, 49-51)

4. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Need to prove the existence of the likelihood of confusion between the marks at issue – Not included (Council Regulation No 207/2009, Art. 52(1)(b)) (see para. 38)

5. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – EU rules only taken into account – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies (Council Regulation No 207/2009, Art. 52(1)(b)) (see para. 40)

6. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it – Not included (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 48)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 9 March 2020 (Case R 1621/2019-5), relating to invalidity proceedings between Ms Chafay and France Agro.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration – Obligation to state the reasons for refusing to register – Scope

(European Parliament and Council Regulation 2017/1001, Arts 7(1) and 94(1), first sentence)

(see para. 60)
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Overlap of the scope of the grounds set out in Article 7(1)(b) and Article 7(1)(c) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see para. 41)
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 – Word mark SIENNA SELECTION

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see paras 54-56, 59-62, 69-71)
Judgment of the General Court (Third Chamber) of 14 July 2021 –

Abitron Germany v EUIPO – Hetronic International (NOVA)

(Case T‑75/20)

(EU trade mark – Invalidity proceedings – EU word mark NOVA – Non-registered earlier national trade mark NOVA – Relative ground for refusal – Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009 (now Article 8(4) and Article 60(1)(c) of Regulation (EU) 2017/1001, respectively) – Reference to the national law governing the earlier mark – Absolute ground for refusal – No bad faith – Article 52(1)(b) of Regulation No 207/2009 (now Article 59(1)(b) of Regulation 2017/1001))

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 27)

2. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Non-registered mark or another sign used in the course of trade – Conditions (Council Regulation No 207/2009, Arts 8(4) and 53(1)(c)) (see para. 35)

3. EU trade mark – Surrender, revocation and invalidity – Invalidity action based on the existence of an earlier national right – Burden of proof (Council Regulation No 207/2009, Arts 8(4) and 53(1)(c)) (see para. 36)

4. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Non-registered mark or another sign used in the course of trade – Word mark NOVA and non-registered mark NOVA (Council Regulation No 207/2009, Arts 8(4) and 53(1)(c)) (see paras 38, 39)

5. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Intention of the applicant (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 47, 48)

6. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Concept of bad faith – Scope (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 49, 50)

7. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Burden of proof (Council Regulation No 207/2009, Art. 52(1)(b)) (see para. 51)

8. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Word mark NOVA and non-registered mark NOVA (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 53, 61-63, 70-73)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 December 2019 (Case R 521/2019-4), relating to invalidity proceedings between Abitron Germany and Hetronic International.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 30 June 2021 –

Framery v EUIPO – Smartblock (Transportable building)

(Case T‑373/20)

(Community design – Invalidity proceedings – Community design representing a transportable building – Earlier designs – Proof of disclosure – Article 7 of Regulation (EC) No 6/2002 – Ground for invalidity – No individual character – No different overall impression – Article 6(1)(b) and Article 25(1)(b) of Regulation No 6/2002 – Obligation to state reasons)

1. Community designs – Grounds for invalidity – No individual character – Design not giving the informed user a different overall impression from that produced by the earlier design – Global assessment of all the elements of the earlier design (Council Regulation No 6/2002, Arts 6 and 25(1)(b)) (see paras 23, 31, 45, 46, 65, 68, 86)

2. Community designs – Grounds for invalidity – Conflict with an earlier design – Design not giving the informed user a different overall impression from that produced by the earlier design – Informed user – Concept (Council Regulation No 6/2002, Arts 6(1), 10(1) and 25(1)(d)) (see paras 50, 51, 54)

3. Community designs – Grounds for invalidity – No individual character – Design not giving the informed user a different overall impression from that produced by the earlier design – Criteria for assessment – Creative licence (Council Regulation No 6/2002, Arts 6 and 25(1)(b)) (see paras 58, 59, 66)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 8 April 2020 (Case R 616/2019-3), relating to invalidity proceedings between Smartblock and Framery.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Applicant’s knowledge that a third party is using an identical or similar sign – Intention of the applicant

(Council Regulation No 40/94, Arts 8(2) and (4) and 51(1)(b))

(see paras 16, 17, 77)
EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU – Essential formality

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2); Regulation of the European Parliament and of the Council 2017/1001, Art. 94(1), first sentence)

(see paras 65, 66)
Judgment of the General Court (Third Chamber) of 6 October 2021 –

Global Translation Solutions v Parliament

(Case T‑7/20)

(Public service contracts – Tendering procedure – Translation services – Rejection of a tenderer’s bid – Award of the contract to another tenderer – Award criteria – Format in which a file submitted in a test is to be uploaded)

1. European Union public contracts – Tendering procedure – Award of contracts – Most economically advantageous tender – Award criteria – Choice of the contracting authority – Limits – Compliance with the principles of transparency, equal treatment and non-discrimination (European Parliament and Council Regulation 2018/1046, Arts 160(1) and (2), and 166(2)) (see paras 31-35, 43, 44)

2. European Union public contracts – Tendering procedure – Award of contracts – Award criteria – Method of assessment – Discretion of the awarding authority (European Parliament and Council Regulations No 966/2012, Art. 105, first para., and 2018/1046, Art. 166(2)) (see para. 47)

3. Fundamental rights – Charter of Fundamental Rights of the European Union – Right to sound administration – Scope (Charter of Fundamental Rights of the European Union, Art. 41) (see para. 60)

4. European Union public contracts – Tendering procedure – Obligation to reject ambiguous tenders – Scope – Obligation to comply with the principle of proportionality (European Parliament and Council Regulation 2018/1046) (see para. 62)

5. European Union public contracts – Conclusion of a contract following a call for tenders – No obligation on a contracting authority to complete a tendering procedure (European Parliament and Council Regulation 2018/1046, Art. 171) (see para. 76)

Re:

Application under Article 263 TFEU for annulment of the decision contained in the Parliament’s letter of 28 October 2019 rejecting the tender submitted by the applicant for Lot 15 in tendering procedure TRA/EU19/2019 and of the decision contained in the Parliament’s letter of 4 December 2019 awarding the contract to another tenderer.

Operative part

The Court:

1. Dismisses the action;
Community designs – Surrender and invalidity – Application for a declaration of invalidity based on the existence of an earlier design – Burden of proof

(Council Regulation No 6/2002, Art. 52; Commission Regulation No 2245/2002, Art. 28(1)(b)(i) and (vi))

(see paras 28, 31)
Judgment of the General Court (Sixth Chamber) of 13 October 2021 –

Unimax Stationery v EUIPO – Mitsubishi Pencil (UNI-MAX)

(Case T‑591/20)

(EU trade mark – Invalidity proceedings – EU figurative mark UNI-MAX – Earlier EU figurative marks uni and uni-ball – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001))

1. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Criteria for assessment (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 21, 22, 24)

2. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment – Composite mark – Element common to two marks having an independent distinctive role in the earlier mark (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 23, 28-32, 46)

3. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Similarity of the marks concerned – Assessment of the distinctive character of an element of which a trade mark is composed (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see para. 35)

4. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Figurative mark UNI-MAX – Figurative marks uni and uni-ball (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 41, 47, 55-59)

5. EU trade mark – Decisions of the Office – Principle of equal treatment – Principle of sound administration – The Office’s previous decision-making practice – Principle of legality – Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 50-53)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 20 July 2020 (Case R 371/2020-5), relating to invalidity proceedings between Mitsubishi Pencil and Unimax Stationery.

Operative part

The Court:

1. Dismisses the action;
Officials – Competitions – Selection Board – Decision not to include a candidate on the reserve list – Obligation to state reasons – Scope – Observance of the secrecy of proceedings – Use of intermediate marking by the Selection Board – Communication of intermediate marks – Whether compatible with observance of the secrecy of the proceedings

(Staff Regulations of Officials, Arts 25, second para., 90 and 91 and Annex III, Art. 6)

(see paras 35-38, 48-51)
EU trade mark – Definition and acquisition of the EU trade mark – Protection of trade marks registered in the United Kingdom – Withdrawal of the United Kingdom from the European Union – Effect

(Art. 50 TEU; Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, Art. 127)

(see paras 15-17)
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 – Complementary nature of the goods or services (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 32, 33)