ddrg/super_eurlex huggingface dataset:
3.

EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of the commercial interests of a given person — Scope — Assessment report of a notified body within the meaning of the legislation on EC declarations of conformity of medical devices — Possible damage to the notified body’s reputation on account of the details, in the report, regarding the analysis of any non-compliance by the body with the applicable legislation — Included (European Parliament and Council Regulation No 1049/2001, Art. 4(2), first indent; Commission Regulation No 920/2013) (see paras 42, 43, 47-54)
Judgment of the General Court (First Chamber) of 19 June 2019 –

L’Oréal v EUIPO — Guinot (MASTER DUO)

(Case T‑182/16 RENV)

(EU trade mark — Opposition proceedings — Application for EU word mark MASTER DUO — Earlier national figurative mark MASTERS COLORS PARIS — 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 — 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 38, 43, 77, 81, 82, 84, 87, 89)

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 of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 42, 60)

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 of the marks concerned — Assessment only on the basis of the dominant element of a complex mark — Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 44, 45, 49, 58)

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 — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 55)

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 mark MASTER DUO and figurative mark MASTERS COLORS PARIS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 63, 66, 67, 76, 91)

6. EU trade mark — Decisions of the Office — 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 207/2009) (see para. 90)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 (Case R 2916/2014-5) relating to opposition proceedings between Guinot and L’Oréal.

Operative part

The Court:

1. Dismisses the action;
Common foreign and security policy — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Rights of the defence — Notification of inculpatory evidence — Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures — Prior communication of new reasoning arising from a context known to the person concerned — New inculpatory evidence — None

(Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 56, 57, 59)
Evidence in rebuttal and the amplification of previous evidence, submitted in response to evidence in rebuttal put forward by the opposing party in his defence, are not covered by the time-bar rule in Article 85(1) of the Rules of Procedure of the General Court, which provides that evidence produced or offered is to be submitted in the first exchange of pleadings. Indeed, that provision concerns fresh evidence and must be read in the light of Article 92(7) of the Rules of Procedure, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified.

The presumption of validity of an EU trade mark in invalidity proceedings restricts the European Union Intellectual Property Office’s (EUIPO) obligation, under Article 76(1) of Regulation No 207/2009, to examine of its own motion the relevant facts which may lead it to apply absolute grounds for refusal. As the registered EU trade mark is presumed to be valid, it is for the person who has filed the application for a declaration of invalidity of that mark to invoke before EUIPO the specific facts which call the validity of that trade mark into question.

For the purposes of challenging the validity of a registered EU trade mark, the cancellation applicant may, however, rely on well-known facts. Well-known facts are facts which are likely to be known by anyone or which may be learnt from generally accessible sources.

Moreover, where the bodies of EUIPO decide to take account of well-known facts, they are not obliged to establish in their decisions the accuracy of such facts.

Similarly, the parties to proceedings before the adjudicating bodies of EUIPO cannot be criticised for not providing evidence of the accuracy of the well-known facts. It is only after stating that the well-known facts alleged by the parties to cancellation proceedings cannot be regarded as such that the Board of Appeal may, where appropriate, disregard them on the ground that the parties have not provided sufficient evidence of their accuracy.

(see paras 31-34)
18

The Director-General found, in essence, that although the facts alleged occurred repeatedly, the tone used by the Head of the Audiovisual Unit in his verbal communication and in the written correspondence provided by the applicant did not seem inappropriate in the context of the facts and the working conditions prevailing within that unit. He stated that, ‘whilst acknowledging that the words used [had] sometimes been somewhat frank and direct, it [was] nevertheless clear that they [did not] go beyond the reasonable limits of a professional discussion between a Head of Unit and the members of his or her team’. He took the view, inter alia, that those conversations had taken place in departmental meetings during which problems within the organisation had been aired, so that they could be considered as having been expressed as part of day-to-day management, with a view to resolving issues that seemed obvious to most of the members of the unit. As for the emails sent by the Head of the Audiovisual Unit to the applicant, the Director-General of DG Personnel took the view that it ‘[was] obvious that they were intended either to improve the functioning of the service or to serve as a reminder of his instructions’, so that, ‘viewed in that context, their content [could] not be considered inappropriate’.
19

EUIPO contends, in essence, that the second sentence of the fifth indent of Article 3 of the GIPs for Article 45 does not apply to the applicant’s situation but applies, for example, to a situation where the reporting officer is absent while the official concerned is present during the promotion exercise, pursuant to its work instructions. That interpretation is borne out by the fact that staff reports are necessary to ensure a proper comparison of the merits of officials eligible for promotion, which is also apparent from Article 3 of the GIPs for Article 45, which requires, as a general rule, that those reports have become final. According to EUIPO, given that a person on sick leave is generally not considered to be in a position to contest his staff report and comply with procedural time limits, it was obliged to suspend the applicant’s appraisal procedures and, consequently, to suspend his promotion procedure in order to guarantee his procedural rights. Furthermore, EUIPO considers that a comparison of the merits on the basis of information other than that contained in the staff reports should be carried out only as a last resort and may be justified only when it is clear that no properly established report will be available, as the official concerned will not be returning to work. EUIPO was obliged, by its duty of care, to ensure that the decision relating to the promotion of the applicant had been taken after he had been given the opportunity to express his views on his merits. Moreover, EUIPO contends, in response to the measure of organisation of procedure adopted by the Court, that it is in the applicant’s interest to be able to participate in an appraisal meeting and to follow the appraisal procedure in its entirety, rather than a procedure in which EUIPO relies on other valid pieces of information, as he is the subject of an investigation by the European Anti-fraud Office (OLAF) which, while it was opened after the contested decision was adopted, concerns the relevant appraisal exercise period. It adds that the staff reports ensure the protection of the rights of members of staff through dialogue and an appeal procedure, which may not be the case if the comparison of the merits is based on other available information.
151

The Commission disputes the applicant’s argument. In the first place, it submits that the intervener did pay the T‑9 port dues for all areas occupied by it on an exclusive basis and the T‑2, T‑3 and T‑4 dues for the use of grounds and gangways contiguous to the docking line. In the second place, it observes that the applicant itself used the port of Morro Jable on an exclusive basis for over 15 years without having to pay the T‑9 port dues for the entire port surface area, but only for the use of certain areas such as offices, warehouses or other facilities requiring private use of ground area. In the third place, the Commission, supported in essence by the intervener, observes that the applicant does not dispute the conclusion in the contested decision to the effect that the T‑9 port dues were correctly charged to the intervener, as the use of the port surface area intended for the use of the docking ramps belonging to the intervener was excluded. Any other conclusion would lead to a considerable overlap between those dues and a series of other port dues, thereby giving rise to double taxation. During the administrative procedure, moreover, the Spanish authorities confirmed that the method for calculating T‑2, T‑3, T‑4 and T‑9 dues had not involved any surrender of State resources. The intervener adds on this point that the very title of the T‑9 port dues (‘storage services, premises and buildings’) provides an indication that the area occupied by the ramp it uses is not subject to those dues, whilst that space does come within the concept of ‘docking works’, ‘port waters and basins’ and ‘port waters and basins, quays and jetties, and handling areas’ coming within the description, in Legislative Decree No 1/1994, of the taxable events for the purposes of the T‑2, T‑3 and T‑4 port dues. Lastly, the Commission observes that the finding in the contested decision to the effect that it has not been disputed that the T‑9 port dues were charged in the same way in all ports coming within the DGCP’s competence, including the ports used by a single operator. Given all the information available, the Commission submits that it was correct in inferring from that finding that the intervener had not received any advantage over other shipping companies and, accordingly, concluding that there were no serious difficulties on this point requiring a formal investigation procedure to be initiated.
83

It must be stated that the applicant, on whom the burden of proof lies, does not state any technical reasons or point to any ground establishing that such technical reasons, even assuming that they exist, made it absolutely necessary to entrust the performance of those services to CESI. In this regard, the applicant simply relies on the fact that the activities forming the subject matter of those supplies of services involved the use of software or of a programme already used jointly by it and CESI. It must be observed that, as the Commission points out, the fact that CESI uses software owned by the applicant is indeed an assessment criterion in the context of a comparison with other competing operators, but it cannot justify, in the light of the case-law cited in paragraph 80 above, the a priori exclusion of any other operator on the ground that CESI is, allegedly, the sole competent operator. Nothing would prevent the applicant, should it receive a more advantageous tender than CESI’s tender, from granting a licence for the use of the software or of the programme at issue to the new operator. In particular, it should be observed that the licence to use the programmes or software is not an exclusive right which would make it impossible for other operators to be used to perform the activities in question. This is necessarily the case because if it were possible to rely on previous professional relationships with the contracting entity in order to preclude any procedure involving a call for competition when new contracts are awarded, the objective of opening up contracts pursued by Directive 2004/17 would inevitably be compromised and this would have the paradoxical result of impeding competition to the benefit of the contractor.
136

In fact, even applying just the normal, or ‘final’, CF pollutant conformity factor of 1.5, which is explained by the existence of a margin of technical uncertainty of 0.5, that is to say of 50%, it must be observed that a margin of error of 50% represents half the value which is supposed to be measured and that, if that margin is converted into a real margin of error as compared with the measurement by the equipment, this results in a margin of 33% (it being acknowledged that a measurement of 120 mg/km may correspond in reality to emissions of 80 mg/km, that is one third less than the value measured). This means that it is impossible to determine following an RDE test whether or not the vehicle being tested complies with those limits or is even close to them. Thus, taking into account such a factor, if a PEMS displays, on the return of a diesel passenger vehicle from an RDE test, a level of emissions of oxides of nitrogen of 120 mg/km, this may mean the following three things: either the equipment provides accurate measurements and the vehicle does indeed emit 120 mg/km of oxides of nitrogen, that is to say one and a half times more than the Euro 6 standard allows; or the equipment may in fact make erroneous measurement on a scale corresponding to the margin of technical uncertainty advanced by the Commission and this may mean that in reality the vehicle emits only 80 mg/km of oxides of nitrogen, that is to say that it just complies with the standard; or, on the contrary, if the equipment makes the opposite error, that the vehicle in fact emits 160 mg/km of oxides of nitrogen, that is to say two times greater than that standard allows. In addition, contrary to the statements made in essence by the Commission at the hearing in response to a written question put by the Court, there is nothing to guarantee that the laboratory test will necessarily ‘catch’ a vehicle emitting excessive levels of pollutants which has successfully passed the RDE test stage thanks to the margin of technical uncertainty. There is nothing to guarantee, for example, that a diesel passenger vehicle ‘measured’ at 100 mg/km during the RDE test and which did in fact emit oxides of nitrogen at that level or at a higher level during that test will record more than 80 mg/km of emissions of oxides of nitrogen during the laboratory test. If the laboratory tests were that reliable, there would be no need for the RDE tests. A fortiori, the problems identified above exist if the temporary CF pollutant conformity factor of 2.1 is used.
71

In response to a written question of the Court (see paragraph 52 above), the Council contends that, even though it has not given any indication to that effect in the statement of reasons, it was aware that there had been judicial oversight in Ukraine during the criminal investigations concerning the applicant. It is apparent from the PGO’s letters referred to in paragraphs 17, 18 and 24 above that several judicial decisions concerning the applicant were adopted in Ukraine, such as the seizures of his property ordered by the Petschersk District Court (Kiev) and an order from the Kiev Court of Appeal to place the applicant in custody as a preventive measure. The fact that the rights of the defence and the right to effective judicial protection were complied with, as well as actually exercised by the applicant, is, moreover, demonstrated by the decision of the Petschersk District Court of 27 July 2015, according to which the investigating judge decided, in the context of one of the criminal proceedings against the applicant, in open court and in the presence of his lawyers, to grant the application of the prosecution to give permission to the prosecutor to conduct a special pre-trial investigation in absentia. The same is true as regards the decision of that court, dated 22 April 2016, to uphold in part the complaint submitted by the applicant’s defence lawyer in the light of the PGO’s alleged failure to take into account an application for a procedural measure to be taken in those proceedings.
68

In that regard, the provisions of paragraph 10(a) of the Rescue and Restructuring Guidelines refer ‘by analogy’ to Article 17 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), now, since the adoption of the contested decision, Article 19 of Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 2012 L 315, p. 74), which provides that ‘in the case of a serious loss of the subscribed capital, a general meeting of shareholders must be called within the period laid down by the laws of the Member States, to consider whether the company should be wound up or any other measures taken’, and the amount of that loss may not be set by the Member States ‘at a figure higher than half the subscribed capital’. In the context of the above directives, the notion of ‘subscribed capital’ is confused with the notion of ‘registered capital’ (see, to that effect, judgment of 23 March 2000, Diamantis, C‑373/97, EU:C:2000:150, paragraphs 3 and 32). In view of the objective pursued by those provisions, laying down a specific obligation to convene a general meeting, and the structure of the text of which they form part, which is aimed distinctly and separately at cases of ‘reduction of [registered] capital’ and affirms that the general meeting is competent in that respect, it is readily apparent that the ‘serious loss of the [registered] capital’ referred to in Article 17 of Second Directive 77/91 is not tantamount to a reduction in the registered capital decided by the competent executive bodies, but rather covers a situation where the own equity is reduced, which may lead, as the case may be, to the adoption by those executive bodies of a decision to reduce the registered capital of the company concerned. In view of the link established by paragraph 10(a) of the Rescue and Restructuring Guidelines with the provisions of the above directives, the notions of disappearance and loss of registered capital in paragraph 10(a) of those guidelines must be interpreted in a manner consistent with the notion of ‘serious loss of the [registered] capital’ referred to in those directives.
Appeal – Grounds – Inadequate statement of reasons – Scope of the obligation to state reasons – Ground involving a question of public policy – Considered of Court’s own motion

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

(see paras 44, 46)
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Partial use—Effect

Concept of (part of the goods or services) covered by the registration (Council Regulation No 207/2009, Art. 42(2) and (3))

(see paras 20, 21, 24)
Judgment of the General Court (Sixth Chamber) of 24 January 2018 — Constantin Film Produktion v EUIPO (Fack Ju Göhte)

(Case T‑69/17)

(EU trade mark — Application for the EU word mark Fack Ju Göhte — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009 (now Article 7(1)(f) of Regulation (EU) 2017/1001)

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Trade marks which are contrary to public policy or to accepted principles of morality—Examination by reference to the perception of the sign by the relevant public (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 13, 15, 34)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Trade marks which are contrary to public policy or to accepted principles of morality—Word mark Fack Ju Göhte (Council Regulation No 207/2009, Art. 7(1)(f)) (see paras 17-20, 26, 30, 32, 40, 43, 46)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Trade marks which are contrary to public policy or to accepted principles of morality—Assessment solely on the basis of an examination of the mark itself related to the goods and services covered (Council Regulation No 207/2009, Art. 7(1)(f)) (see para. 28)

4. EU trade mark—Decisions of the Office—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 (see paras 36-39)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 1 December 2016 (Case R 2205/2015–5), concerning an application for registration of the word sign Fack Ju Göhte as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;