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

VF International v EUIPO – National Geographic Society (NATIONAL GEOGRAPHIC)

(Case T‑518/20)

(EU trade mark – Invalidity proceedings – EU figurative mark NATIONAL GEOGRAPHIC – Earlier non-registered mark GEOGRAPHIC – Relative ground for refusal – Use in the course of trade of a sign of more than mere local significance – Article 8(4) and Article 52(1)(c) of Regulation (EC) No 40/94 (now Article 8(4) and Article 60(1)(c) of Regulation (EU) 2017/1001))

1. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – 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 15, 16, 18)

2. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Non-registered mark or another sign used in the course of trade – Use of the sign in trade – Concept – Use in the context of a commercial activity with a view to economic advantage (Council Regulation No 40/94, Arts 8(4) and 52(1)(c)) (see paras 17, 30)

3. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Non-registered mark or another sign used in the course of trade – Figurative mark NATIONAL GEOGRAPHIC and non-registered mark GEOGRAPHIC (Council Regulation No 40/94, Arts 8(4) and 52(1)(c)) (see paras 26, 38, 43, 44, 46, 47)

4. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Non-registered mark or another sign used in the course of trade – Conditions – Local scope of sign (Council Regulation No 40/94, Arts 8(4) and 52(1)(c)) (see para. 31)

5. EU trade mark – Decisions of EUIPO – Principle of equal treatment – Principle of sound administration – EUIPO’s previous decision-making practice – Principle of legality – Need for a strict and complete examination in each particular case (Council Regulation No 40/94) (see para. 45)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 21 May 2020 (Case R 1664/2019-1), relating to invalidity proceedings between VF International and National Geographic Society.

Operative part

The Court:

1. Dismisses the action;
1.

Actions brought by officials – Action against a decision rejecting a complaint – Effect – Disputed measure referred to the Court – Exception – Decision not confirmatory in character – Account taken of the reasoning therein (Staff Regulations of Officials, Arts 90 and 91) (see paras 14-17)
Judgment of the General Court (Sixth Chamber) of 10 November 2021 –

Monster Energy v EUIPO – Frito-Lay Trading Company (MONSTER and MONSTER ENERGY)

(Joined Cases T‑758/20 and T‑759/20)

(EU trade mark – Revocation proceedings – EU word marks MONSTER and MONSTER ENERGY – Genuine use of the marks – Use in connection with the goods in respect of which the marks were registered – Article 51(1)(a) of Regulation (EC) No 207/2009 (now 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 – Burden of proof (Council Regulation No 207/2009, Art. 51(1)(a)) (see para. 26)

2. 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 – Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 27-30)

3. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word marks MONSTER and MONSTER ENERGY (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 52, 53, 57, 63, 70)

Re:

Two actions brought against the decisions of the Second Board of Appeal of EUIPO of 5 October 2020 (Cases R 2927/2019-2 and R 2928/2019-2), relating to two revocation proceedings between Frito-Lay Trading Company and Monster Energy.

Operative part

The Court:

1. Dismisses the actions;
Judgment of the General Court (Tenth Chamber) of 21 December 2021 –

Magic Box Int. Toys v EUIPO – KMA Concepts (SUPERZINGS)

(Case T‑549/20)

(EU trade mark – Invalidity proceedings – EU word mark SUPERZINGS – Earlier international figurative mark ZiNG – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) 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, Art. 8(1)(b)) (see paras 19-21, 58)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27, 30, 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 – Likelihood of confusion with the earlier mark – Word mark SUPERZINGS and figurative mark ZiNG (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 29, 35, 36, 55, 59, 62)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 29 June 2020 (Case R 2511/2019-4), relating to invalidity proceedings between KMA Concepts and Magic Box Int. Toys.

Operative part

The Court:

1. Dismisses the action;
Officials – Members of the temporary staff – Recruitment – Non-renewal of a fixed-term contract – Concept of decision adversely affecting an official concerning non-renewal of a contract – Decision adopted without first giving the interested party the opportunity to comment – Infringement of the right to be heard

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

(see paras 52-57, 66, 70, 75)
Officials – Staff of the European Investment Bank – Remuneration – Family allowances – Dependent child allowance – Conditions for granting – Actual maintenance – The Bank’s internal rules providing for dependent child allowances to be paid only to the parent with custody of the child – No infringement of the principles of equal treatment and proportionality

(Staff Regulations of the European Investment Bank, Art. 20, first para. and Annex I)

(see paras 102, 105-108)
Judicial proceedings – Measures of inquiry – Request for production of documents – Production before the General Court of opinions of the legal services of EU institutions – Conditions – Exceptional circumstances – Burden of proof on the applicant

(Rules of Procedure of the General Court, Arts 85(3) and 91)

(see paras 17-20)
EU trade mark – Appeals procedure – Boards of Appeal – Allocation of an appeal to a Board – Referral back by the Board of Appeal to the body which adopted the contested decision – Allocation of the appeal to the same Board – No infringement of the requirement of impartiality

(Charter of Fundamental Rights of the European Union, Arts 41(1) and 47; European Parliament and Council Regulation 2017/1001, Art. 166(4)(c); Commission Regulation No 2018/625, Art. 35(1))

(see paras 44-47)
4.

Officials – Disciplinary measures – Enquiry preceding the initiation of disciplinary proceedings – Investigatory powers of the Investigation and Disciplinary Office of the Commission (IDOC) – Powers of assessment of that Office – Limits – Compliance with the principles of sound administration, impartiality and exhaustiveness of the grounds of exclusion (Staff Regulations of Officials, Annex IX) (see paras 112-114, 120, 121)
EU agencies – European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) – Security rules – Applicable rules

(European Parliament and Council Regulations No 1077/2011, Art. 29, and No 2018/1726, Arts 19(1)(z) and (aa), 37(1) and 55; Commission Decisions 2001/844 and 2015/444, Art. 58)

(see paras 50-63)
5.

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 between the goods or services in question – Criteria for assessment – Complementary nature of the goods or services – Fashion and clothing sector (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 66-69, 73, 75-82, 95)
46

EUIPO disputes the applicant’s arguments. It does agree, in the first place, that it is certainly a key feature of the law of passing off that the respective goods do not need to be the same, or to fall within the same scope of reputation and goodwill, to constitute a likelihood of misrepresentation and damage caused to the goodwill. However, that does not undermine the Board of Appeal’s reasoning because it did not find or imply that the contested goods must be the same as those for which the earlier mark enjoys goodwill. In addition, according to EUIPO, the fact that the respective goods do not need to be the same does not mean that a mere link between the goods, for example, at the level of ingredients, is sufficient to induce a misrepresentation. Therefore, the Board of Appeal was right to stress that goodwill for a specific kind of rice, here, basmati rice, does not equate to goodwill acquired for goods containing rice. As goodwill is the attractive force that brings in custom, its scope is defined by the goods and services to which the relevant public associates that attractive force. Since the applicant is one of a group of businesses that use the term ‘basmati’ for a specific kind of rice, rice is the product to which goodwill extends. The findings of the Board of Appeal establish that the starting point was that the term ‘basmati’ enjoyed goodwill for the product ‘rice’ and that it was necessary to determine whether the use of that term for the contested goods traded off that goodwill by inducing a misrepresentation on the part of the consumer. As regards rice flour, rice-based convenience food or rice meal for forage, according to EUIPO, no evidence was produced to show that the kind of rice used is a material factor for consumers when deciding to purchase those products.
66

In the rejoinder, the Commission, as regards the possibility for the applicant to clarify the scope of the first plea, observes as a preliminary point that the applicant’s argument is based on the incorrect premiss that the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001 concern one and the same exception, whereas they relate to two separate exceptions which apply as alternatives. In that context, first, the Commission submits that the applicant confirmed that it intended to rely on an infringement of the second subparagraph of that provision and so reliance on that subparagraph is therefore not a clerical error. By contrast, it is the reference to the first subparagraph of that provision (once in the statement of modification in Case T‑371/20 and once in the application in Case T‑554/20) which is a clerical error, since there is no independent argument in that regard, especially since the two exceptions apply in the alternative. If the applicant intended to develop alternative or cumulative reasoning relating to the first subparagraph, it should have indicated this clearly in the statement of modification in Case T‑371/20 or in the application in Case T‑554/20; it cannot make such an extension retroactively. Second, the Commission submits that the applicant cannot rely in the reply on arguments relating to the first subparagraph on the ground that they are closely linked to those put forward in the application, since the two exceptions are distinct and protect two different interests. The fact that the documents could fall within the scope of both exceptions has no bearing on the assessment which the Commission must carry out, which differs according to whether the interest protected is an ongoing or closed decision-making process. Moreover, the fact that the applicant could have relied on the same line of argument is irrelevant. The Commission therefore concludes that the applicant, in the reply, raised a new plea which is inadmissible.
EU trade mark – Appeals procedure – Action before the EU judicature – Application initiating proceedings – Formal requirements – Pleas in law not set out in the application – General reference to other documents – Inadmissibility

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

(see para. 22)
2.

Officials – Reports procedure – Staff report – Drawing up – Obligation to fix objectives to be achieved – Vague nature of the objectives – Circumstance such as to justify the annulment of the report – Not included (Staff Regulations of Officials, Art. 43) (see paras 32, 33)
2.

EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Three-dimensional trade marks consisting of the shape of the product itself – Distinctive character – Criteria for assessment – Shape in question being a ‘variant’ of the habitual shapes of the type of products concerned – Fact not sufficient to establish distinctiveness of the mark (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 26)
Judgment of the General Court (Sixth Chamber) of 4 May 2022 –

Deichmann v EUIPO – Munich (Representation of two crossed stripes placed on the side of a shoe)

(Case T‑117/21) ( 1 )

(EU trade mark – Invalidity proceedings – EU figurative mark representing a cross on the side of a sports shoe – Article 7(1)(b) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and Article 59(1)(a) of Regulation (EU) 2017/1001) – Article 94(1) of Regulation 2017/1001)

1. 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; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence) (see para. 17)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Plea based on absence or inadequacy of the statement of reasons – Plea alleging incorrectness of the statement of reasons – Distinction (Art. 296 TFEU) (see paras 18, 19)

3. EU trade mark – Procedural provisions – Decisions of the Office – Observance of the rights of the defence – Scope of the principle (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Regulation 2017/1001, Art. 94(1), second sentence) (see para. 34)

4. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Assessment of distinctive character – Criteria (Council Regulation No 40/94, Arts 7(1)(b) and 51(1)(a)) (see paras 50-53)

5. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Assessment of distinctive character – Criteria – Perception of the trade mark by the relevant public – Attention level of the public (Council Regulation No 40/94, Arts 7(1)(b) and 51(1)(a)) (see para. 54)

6. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Figurative mark representing a cross on the side of a sports shoe (Council Regulation No 40/94, Arts 7(1)(b) and 51(1)(a)) (see paras 60-65, 71)

Operative part

The Court:

1. Dismisses the action;

2. Orders Deichmann SE to pay the costs of the European Union Intellectual Property Office (EUIPO) and of Munich, SL.

( 1 ) OJ C 128, 12.4.2021.
EU trade mark – Appeals procedure – Action before the EU judicature – Modification of the terms of the dispute as brought before the Board of Appeal – Not permissible

(Rules of Procedure of the General Court, Art. 188)

(see para. 17)
Appeal – Pleas in law – Plea against a ground of the judgment not necessary to support the operative part – Ineffective plea

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see para. 20)
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 – Protection of well-known earlier mark extended to dissimilar goods or services – Conditions – Reputation of the mark in the Member State or the EU – Use of a trade mark as part of another trade mark and reputation (Council Regulation No 207/2009, Art. 8(5)) (see para. 28)
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 paragraphs 20, 21)
Keywords

Summary



Keywords

++++

Procedure - Intervention - Interested persons - Dispute relating to the validity of a decision applying the rules on competition - Complainant undertaking - Undertaking to which the decision was addressed failed to bring an independent action - Procedural rights

(Statute of the Court of Justice of the EEC, Art. 37)

Summary

The right to intervene in a dispute between one of the addressees of a Commission decision applying the rules on competition and the Commission is granted by Article 37 of the Statute of the Court to any person establishing an interest in the result of such a case. The undertaking whose complaint caused the proceeding to be initiated which was concluded by the decision at issue has such an interest. So does an undertaking which, like the applicant, was the addressee of the decision and, as a result, enjoyed an independent right of action under the second paragraph of Article 173 of the Treaty. That interest is not negated by the fact that it did not bring such an action, but means that its rights as intervener must be confined to supporting the form of order sought by the applicant.
Keywords



Keywords

++++

Application for interim measures - Action brought by an official - Application for interim measures having a purpose different from that of the main action and not preceded by a prior administrative complaint - Inadmissible

(EEC Treaty, Art. 186; Rules of Procedure, Art. 83(2); Staff Regulations of Officials, Arts 90 and 91)
Keywords

Summary



Keywords

++++

Procedure ° Costs ° Action which has become devoid of purpose ° Failure by the applicant to discontinue proceedings ° Application of the rules applicable to cases not proceeding to judgment

(Rules of Procedure of the Court of First Instance, Art. 87(5) and (6))

Summary

Where an action which was admissible when brought becomes devoid of purpose because the applicant has obtained satisfaction from the defendant, and the applicant does not discontinue the proceedings but asks the Court to proceed with the case, at least as regards the award of costs, it is appropriate to make an order as to costs in accordance not with Article 87(5) of the Rules of Procedure but with Article 87(6) thereof, which provides that, where a case does not proceed to judgment, the costs are to be in the discretion of the Court of First Instance.
Keywords



Keywords

++++

1. Officials - Actions - Right to bring an action - Persons claiming the status of officials or servants other than local staff

2. Officials - Action - Action brought by a successful candidate in an open competition for non-recruitment - Prior administrative complaint - None - Inadmissibility

(Staff Regulation, Arts 90 and 91)
Keywords

Summary



Keywords

++++

1. Application for interim measures - Conditions of admissibility - Admissibility of the main application - Irrelevant - Limits

(EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2) )

2. Application for interim measures - Suspension of operation - Interim measures - Conditions for granting - Serious and irreparable harm (EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2) )

Summary

1. If, in proceedings concerning an application for interim measures, it is contended that the main application is manifestly inadmissible, it is for the court hearing the application for interim measures to establish that the application reveals prima facie grounds for concluding that there is a certain probability that it is admissible.

2. Since the annulment of certain acts forming part of a procedure undertaken by an institution renders the whole of the procedure illegal and places the institution under an obligation to reopen the procedure, an applicant against whom such a procedure is initiated has no grounds for claiming that it would suffer serious and irreparable damage as a result of the fact that those acts might be annulled after the adoption by the institution concerned of its final decision on conclusion of the procedure initiated by it.
Keywords

Summary



Keywords

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Officials ° Actions ° Action for damages brought in the absence of the pre-litigation procedure provided for by the Staff Regulations ° Inadmissibility

(Staff Regulations of Officials, Arts 90 and 91)

Summary

Under the system of appeals set up by Articles 90 and 91 of the Staff Regulations, an action for damages which seeks compensation for damage caused not by a measure adversely affecting the official concerned, the annulment of which is sought, but by several wrongful acts and omissions for which the administration is alleged to be responsible, must be preceded by an administrative procedure divided into two stages. That procedure must without exception be initiated by the lodging of a request asking the appointing authority for compensation in respect of the alleged damage and be pursued, if appropriate, by a complaint against the decision rejecting that request.
Keywords

Summary



Keywords

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Procedure ° Costs ° Action which has become devoid of purpose ° Not withdrawn by the applicant ° Application of the rules where there is no need to give a decision

(Rules of Procedure of the Court of First Instance, Art. 87(6))

Summary

Where an action was admissible when it was commenced but has become devoid of purpose because the contested decision has been replaced by a new decision giving the applicant full satisfaction, if the applicant does not withdraw the action costs are to be determined pursuant to Article 87(6) of the Rules of Procedure which provides that, where a case does not proceed to judgment, costs are in the discretion of the Court.