ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 10 November 2021 –

Stada Arzneimittel v EUIPO – Pfizer (RUXIMBLIS)

(Case T‑542/20)

(EU trade mark – Opposition proceedings – Application for the EU word mark RUXIMBLIS – Earlier EU word mark RUXIMERA – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – 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 23, 24, 52)

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 25, 57)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 28)

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 – Similarity of the marks concerned – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 41)

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 – Likelihood of confusion with the earlier mark – Word marks RUXIMBLIS and RUXIMERA (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 53-56, 58)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 16 June 2020 (Case R 1877/2019-4), relating to opposition proceedings between Pfizer and Stada Arzneimittel.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 15 December 2021 –

FJ and Others v EEAS

(Case T‑619/20)

(Civil Service – Officials – Remuneration – EEAS staff posted to a third country – Annual and interim update of correction coefficients – Manifest error of assessment)

1. Officials – Remuneration – Weightings – Fixing – Interim update decided by the Commission – Aim (Staff Regulations of Officials, Arts 64 and 65 and Annex XI, Arts 4 to 7) (see paras 56, 57, 66)

2. Officials – Remuneration – Weightings – Fixing – Discretion of the institutions – Judicial review – Limits – Manifest error of assessment – Burden of proof (Staff Regulations of Officials, Arts 64 and 65 and Annex XI) (see paras 58-60, 64, 67, 81, 84)

3. Officials – Remuneration – Weightings – Fixing – Criteria – Effect of the increase in the correction coefficients applied to the salaries of staff of UN organisations – None (Staff Regulations of Officials, Art. 64) (see para. 72)

Re:

Application under Article 270 TFEU for annulment of the applicants’ salary statements for the month of December 2019 in so far as they apply, for the first time, the correction coefficients fixed, with retroactive effect, on 1 April and 1 July 2019.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings – Introduction of new pleas during the proceedings – Conditions – Plea based on matters which have come to light in the course of the procedure – Scope – Plea based on matters which are known and alleged at the time the action was brought – Precluded

(Rules of Procedure of the General Court, Art. 84(1))

(see paras 120, 121, 123)
2.

Actions brought by officials – Pleas in law – Plea alleging infringement of the ‘reasonable time’ principle – Action against a decision seeking recovery of undue payments adopted within the applicable time limit – Requirement to rely on exceptional circumstances (Staff Regulations of Officials, Art. 85, second para.) (see paras 34-37)
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 – Recourse by the Board of Appeal to implicit reasoning – Whether permissible – Conditions

(Art. 296 TFEU; Regulation of the European Parliament and of the Council 2017/1001, Art. 94(1), first sentence)

(see paras 128-131)
Approximation of laws – Medicinal products for human use – Marketing authorisation – Procedure for reviewing the opinion of the Committee for Medicinal Products for Human Use of the European Medicines Agency (EMA) – Assessment of the impartiality of the members of an ad hoc expert committee involved

(Charter of Fundamental Rights of the European Union, Art. 41(1); European Parliament and Council Regulation No 726/2004, Art. 63(2))

(see paras 88-92, 131-133)
Agriculture – Common organisation of the markets – Fruit and vegetables – Producer organisations – Recognition of those organisations by the national authorities where essential activities are outsourced – Conditions – Assessment of the main activities carried out by producer organisations and of the activities which can be outsourced – Point at which the Member State verifies compliance with the criteria set for outsourcing

(European Parliament and Council Regulation No 1308/2013, Art. 155; Commission Regulation No 543/2011, Arts 26 and 27)

(see paras 184, 201, 203-206)
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 – Likelihood of confusion with the earlier mark – Assessment of the likelihood of confusion – Determination of the relevant public – Attention level of the public (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 32, 33, 38)
Judicial proceedings – Application initiating proceedings – Formal requirements – Summary of the pleas in law on which the application is based

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 15)
37

Consequently, first, the compensation for the damage is not made by taking the nationality of the victims of the damage as the chief factor for allocation as such, but in fact requires an institutional link with the place where the damage caused by the travel restrictions and lockdown arose, namely the principal place of business, since the criterion to be eligible for the aid scheme in question is the issuing of a French licence, which presupposes that the airline’s principal place of business is in France. Secondly, that link, in fact, also has a time element, because, as the applicant states in paragraph 59 of the application, it is not easy to obtain a licence from another Member State, as an airline must then not only transfer the principal place of business but also make a new application for an operating licence, while a provision of services may end from one day to the next. It is therefore normal for the Member State concerned to seek to ensure that the airlines eligible for the aid scheme at issue have a stable presence, in order for them to be present on French territory to honour the deferral of the payment of taxes granted, so that the shortfall in tax revenue is as low as possible in the medium term. The criterion of holding a French licence, in so far as it requires the principal place of business of the airlines to be on French territory, ensures at least the administrative and financial stability of the presence of those airlines, so that the authorities of the Member State granting the aid may control the manner in which that aid is used by the recipients, which would not have been the case if the French Republic had adopted another criterion allowing the eligibility of other airlines operating on French territory under a licence delivered by another Member State, like the applicant, as provision of services, by definition, is of a more uncertain nature in terms of its duration, since it may cease at very short notice, if not immediately.
166

The business links between the applicant and his brother, Samer Foz, are also reflected in a form of concertation in how their share portfolios are managed. First, it is apparent from the letter of 22 November 2020 and the registration certificate, attesting to the new distribution of the shareholding of Aman Holding, produced by the applicant, that he and Samer Foz both transferred their shares in Aman Holding during the same period (between 22 November 2020 and 3 December 2020). In that regard, the applicant’s argument that the disposal of his shares before the expiry of a period of three years was unlawful under Article 96(1) of the Syrian law on ‘Preventing the trade of shares’ is not sufficiently borne out by evidence. Nor is that argument well founded, since, despite the applicant’s claim that he intended to divest himself rapidly of his shareholding, he establishes only that he signed the sale contract of 2 April 2020, namely more than one month and three weeks after the end of the period prescribed by Article 96(1) of that law. In any event, that circumstance in no way diminishes the fact that the disposal of the shares held by the applicant and Samer Foz took place within a very short period of time. Second, the decision to liquidate ASM International General Trading shows that there was some form of concertation, as the Council maintains. In that regard, it is apparent from the evidence produced by the applicant that the decision was taken on 26 March 2019 by the shareholders comprising the extraordinary assembly of that company, including Samer Foz and the applicant, in reaction to the inclusion of Samer Foz’s name on the lists at issue in January 2019.
99

As regards the complaint alleging an inadequate statement of the reasons why the Commission failed to calculate normal value, it should be noted that the Court has already held that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the Courts to exercise their power of review. It is not, however, necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 October 2012, Shanghai Biaowu High-Tensile Fastener and Shanghai Prime Machinery v Council, T‑170/09, not published, EU:T:2012:531, paragraph 126 and the case-law cited). Moreover, the statement of reasons for the contested regulation must be appraised having regard, in particular, to the information disclosed to the applicant and to its observations submitted during the administrative procedure (judgment of 4 March 2010, Sun Sang Kong Yuen Shoes Factory v Council, T‑409/06, EU:T:2010:69, paragraph 150). In particular, the statement of the reasons on which anti-dumping regulations are based is not required to specify the often very numerous and complex matters of fact and law dealt with in the regulations, provided that they fall within the general scheme of the body of measures of which they form part. It is sufficient for the reasoning of the institutions in the regulations to appear clearly and unequivocally (see, to that effect, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 357).
European Parliament – Members – Payment of expenses and allowances – Parliamentary assistance allowances – Check relating to the use of parliamentary assistance expenses – Burden of proof

(Decision of the Bureau of the European Parliament concerning implementing measures for the Statute for Members of the European Parliament, Arts 33(1), second sentence, and 68)

(see paras 40-42)
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(1) and 25(1)(b)) (see paras 20, 21)
Judgment of the General Court (Sixth Chamber) of 12 January 2022 –

Laboratorios Ern v EUIPO – Malpricht (APIRETAL)

(Case T‑160/21)

(EU trade mark – Revocation proceedings – Word mark APIRETAL – Declaration of revocation – No genuine use – No proper reasons for non-use – Article 58(1)(a) of Regulation (EU) 2017/1001)

1. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Concept – Criteria for assessment – Medicinal products (European Parliament and Council Regulation 2017/1001, Arts 18(1) and 58(1)(a)) (see paras 16-21)

2. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word mark APIRETAL (European Parliament and Council Regulation 2017/1001, Arts 18(1) and 58(1)(a)) (see paras 26, 34, 35)

3. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Concept of ‘proper reasons’ for non-use – Independent and uniform interpretation – Obstacles bearing a direct relation to the trade mark rendering its use unreasonable or impossible and independent of the volition of the trade mark proprietor (European Parliament and Council Regulation 2017/1001, Arts 18(1) and 58(1)(a)) (see paras 30-32)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 January 2021 (Case R 1004/2020‑4), relating to revocation proceedings between Ms Malpricht and Laboratorios Ern.

Operative part

The Court:

1. Dismisses the action;
1.

Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 December 2020 (Case R 727/2020-5) in so far as it refuses registration of the word sign Beverage Analytics as an EU trade mark for ‘Website development software’ and ‘Computer operating programs, recorded’ in Class 9 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, and for the services of ‘Creating and maintaining web sites for others’, ‘Transfer of data or documents from physical to electronic data carriers’, ‘Monitoring of computer systems by remote access to ensure proper functioning’, ‘Web site design consultancy’, ‘Digitization of documents’, ‘Duplication of computer programs’, ‘Quality control’, ‘Recovery of computer data’ and ‘Testing and research relating to machines, apparatus and instruments’ in Class 42;
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 – Assessment of the likelihood of confusion – Attention level of the public – Goods that may have an impact on health (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 24-26)
Officials – Promotion – Complaint by a candidate not promoted – Decision to reject – Obligation to state reasons – Scope – Inadequate statement of reasons – Regularisation during the proceedings – Conditions

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Staff Regulations of Officials, Arts 25, second para., 45 and 90(2))

(see paras 25-27, 38)
2.

EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of a non-registered mark or another sign used in the course of trade – Conditions – Interpretation in the light of EU law – Assessment by reference to the criteria determined by the national law governing the sign relied on (Council Regulation No 40/94, Arts 8(4) and 52(1)(c)) (see paras 21-23)
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 – Similarity between the goods or services in question – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 22, 23)
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Examination of the grounds for refusal having regard 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 paras 43-45)
EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Proof of use – Genuine use – Meaning – Criteria for assessment – Requirement of solid and objective evidence

(Council Regulation No 207/2009, Arts 15, 42(2) and (3) and 51(1)(a))

(see paras 60-66, 77, 88)
EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures directed against the Democratic Republic of the Congo – Freezing of funds of persons undermining the rule of law or contributing to the commission of acts that constitute serious human rights violations – Obligation to disclose individual and specific grounds for the decisions adopted – Obligation to enable the person concerned effectively to put forward his or her point of view regarding the reasons relied on against him or her – Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Decision 2010/788/CSFP, as amended by Decision (CFSP) 2020/2033, Annex II; Council Regulations No 1183/2005 and 2020/2021, Annex)

(see paras 56-58)
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 enjoying a reputation – Extension of protection of earlier mark with a reputation to dissimilar goods or services – Conditions – Reputation of the mark in the Member State or in the European Union – Use of a trade mark as part of another registered trade mark with a reputation (European Parliament and Council Regulation 2017/1001, Art. 8(5)) (see paragraphs 71, 72, 83)
81

As regards the first head of material damage alleged, consisting of a loss of earnings, it should be noted as a preliminary point that the applicant cannot validly substantiate her claim for damages, lodged at the same time as her claim for annulment directed against the non-renewal decision and the decision rejecting her complaint, by stating that the annulment of those acts should entail retroactive renewal of her contract, with the effect that EIOPA must pay her the amounts of which she has been unlawfully deprived since the expiry of her previous contract. If that line of argument were followed, it would render nugatory the claim for compensation for damage consisting of loss of earnings at the time of delivery of the present annulment judgment. That line of argument cannot be accepted. It is true, as noted in paragraph 79 above, that the Courts of the European Union may make use of the unlimited jurisdiction conferred on them in disputes of a financial nature, including in cases involving only claims for annulment, if the annulment of a legally incorrect decision taken by the competent authority is not sufficient to uphold the rights of the official concerned or to protect his or her interests effectively, since the court may, where appropriate, be called upon to exercise that power by an applicant declaring that he or she is unable to derive actual benefit from the performance of the obligations arising from the annulment of the act. In the present case, however, EIOPA cannot be required to do what the applicant requests, namely to reinstate her retroactively, since the unlawfulness found in paragraph 67 above does not mean that she must be automatically reinstated, but only that the 2019 appraisal report must be finalised and that the application for renewal of the contract must be re-examined. Consequently, the applicant’s main argument in support of her claim for compensation for material damage linked to loss of earnings cannot succeed.
Keywords



Keywords

++++

Procedure - Request for confidential treatment - To be examined with reference to the requirements of the protection of business secrecy and those arising from the principle that all parties must be in a position to reply to any points adversely affecting them

( Rules of Procedure, Art . 91(1 ) )
31

With regard to the Commission's second plea in law, the applicant maintains that the Commission is disregarding the position of the complainants in a procedure such as this by denying their interest in the application of Article 15(6) of Regulation No 17. According to Prodifarma, when an agreement is the subject of a complaint on the one hand and of a notification on the other, the parties concerned are adversaries in the context of the procedure in which the Commission assesses the agreement in question with regard to Article 85 of the Treaty. To state that such a procedure concerns solely the parties to the agreement amounts to a serious disregard of the facts of the case. The applicant considers that it has a manifest and direct interest in the course and termination of the procedure. It claims that in the judgments in Case 26/76 Metro, cited above, and Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045 it was recognized that individuals have an interest, which must be legally protected, in the correct application of the competition rules when their interests are affected by an agreement which is assessed in the light of those rules. As for the specific question of the application of Article 15(6) of Regulation No 17, Prodifarma maintains that its interest lies in the fact that the immunity from fines conferred by Article 15(5) leads, as between the parties to the ‘dispute’, to inequality, which disappears when the immunity is lifted.