ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Tenth Chamber) of 28 April 2021 –

Repower v EUIPO – repowermap.org (REPOWER)

(Case T‑842/16)

(EU trade mark – Invalidity proceedings – International registration designating the European Union – Word mark REPOWER – Absolute ground for invalidity – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) – Obligation to state reasons – Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001))

1. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Definition (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 26, 28-40, 44, 45)

2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Aim – Need to preserve availability (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see para. 27)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Word mark REPOWER (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 68-70)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 26 September 2016 (Case R 2311/2014-5) relating to invalidity proceedings between repowermap.org and Repower.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 September 2016 (Case R 2311/2014-5) in so far as the application for a declaration of invalidity has been upheld in respect of voice tubes in Class 9;

2. Dismisses the action for the remainder;
Officials — Staff of the European Investment Bank — Pre-litigation procedure — Optional — Initiation of conciliation proceedings — Possibility of bringing an action before the EU Judicature before conclusion of the proceedings

(Charter of Fundamental Rights of the European Union, Arts 47 and 52(1); Staff Regulations of Officials, Arts 90 and 91; Staff Regulations of the European Investment Bank, Art. 41)

(see paras 93-96)
Officials – Reimbursement of expenses – Annual travel expenses – Reform of the Staff Regulations – Discretion of the EU legislature – Application of different methods of calculation to officials with their place of origin within the European Union and those with a place of origin outside the European Union – Whether permissible – No breach of the right to respect for private and family life or of the principle of equal treatment

(Charter of Fundamental Rights of the European Union, Arts 7 and 20; Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Arts 2, 4 and 8)

(see paras 37-46, 51-63)
53

In that connection, it is true that, as is clear from the applicant’s evaluation reports for 2012 to 2014, he was the subject of criticisms, in particular concerning the management of his teams. In the 2012 evaluation report, the assessor noted, in particular, that in that year he expected ‘[the applicant] and his team [to adopt] a calmer and more coordinated way of working’, but that ‘[that] had not been fully achieved in the first six months, as certain tensions had arisen on occasion in the unit’. The same report stated that, in spite of the progress noted, ‘the applicant still had difficulties in organising his working time optimally … and delegating to members of his team’, the assessor noting that the applicant remained ‘too involved in redoing, revising or amending the work of his subordinates’ to the detriment of the time spent ‘pursuing the general priorities and objectives of his unit, the direct management of his team and the resolution of disputes’. In the 2013 evaluation report, the assessor noted in particular that ‘[the applicant] still needs to make more progress in order to ensure proper communication with members of his staff, to effectively manage disputes and to ensure that reports, planning and administrative deadlines are implemented smoothly’. Finally, in the applicant’s 2014 evaluation report, that is the applicant’s last evaluation report before the contested decision, the assessor observed that the applicant was ‘much more at ease in drafting rules and revising documents and managing staff’ and that he still spent too much of his working time ‘rewriting, revising or amending documents when he was asked for technical advice’. The assessor again regretted that time was not spent on ‘the priorities and general objectives for his unit and the direct management of his team’, and stated that in 2015 he expected the applicant to adopt ‘a calmer and more organised working method for him and his team’.
38

While it is true that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 45) and that, consequently, an examination of the validity of an act of EU secondary legislation must be undertaken solely in the light of the fundamental rights guaranteed by the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 46), it should be recalled, on the one hand, that, under Article 6(3) TEU, fundamental rights recognised by the ECHR constitute general principles of EU law and, on the other hand, that it follows from Article 52(3) of the Charter that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. According to the explanations relating to that provision, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it, the meaning and scope of the guaranteed rights are determined not only by the text of the ECHR, but also, in particular, by the case-law of the ECtHR (see judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horaţiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41 and the case-law cited). It is also apparent from those explanations that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (judgment of 28 July 2016, JZ, C‑294/16 PPU, EU:C:2016:610, paragraph 50). Moreover, it must be pointed out that that equivalence between the freedoms guaranteed by the Charter and those guaranteed by the ECHR has been formally expressed in relation to freedom of expression (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 147).
185

According to the Court of Justice, the present case is a case not provided for by the EU legislature when it adopted Article 34 of the Staff Regulations. The applicant’s extended period of sick leave lasting 7 months during the initial probationary period would have prevented him from completing the minimum 9‑month probationary period if it had been extended by only 6 months to reach 15 months in total. According to the Court of Justice, if the probationary period had been extended until 28 February 2015, that is to say 15 months after the start of the applicant’s probationary period, the applicant would have been assessed only over a period of 8 months. The argument put forward by the applicant, if upheld, would sacrifice the aim of establishing a minimum probationary period, that is to guarantee, in the light of Article 27 of the Staff Regulations, that only a probationer demonstrating the highest standards may be established as an official. Moreover, that argument could lead, in a case such as this one, to the appointing authority having to dismiss a probationer on the ground that he was unable to demonstrate those standards, although he could have done so, depending on the circumstances, if he had indeed completed a 9-month probationary period. Such a consequence is clearly contrary to the interests of probationers who, during their probationary period, are involuntarily prevented from completing their duties for one of the reasons set out in the second subparagraph of Article 34(1) of the Staff Regulations and is discriminatory for those probationers in comparison to those who have completed a 9-month probationary period or even a probationary period lasting up to 15 months. In addition, the Court of Justice points out that the applicant acknowledged, in his observations on the first probationary report, that he had an interest in his probationary period being extended beyond the maximum duration of 15 months and that he did not contest the decision to extend the probationary period of 1 October 2014.
32

Thirdly, it is apparent from the file that the applicant had to face a series of actions, some of which were vexatious, extending over a long period, namely, following the transfer of property on 7 November 2011 until 2015, which was after the end of the relevant period. Thus, first, Asiarim brought an action for damages in the United States against the owners of the applicant company claiming an amount of 32 million United States dollars (USD) (EUR 27700000 approximately) by way of damages on the basis of the allegedly unlawful acquisition of the Commodore trade marks, that dispute being finally settled only on 28 September 2015, as well as an action before the judge hearing the application for interim measures in the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) for the seizure of their assets. Secondly, another company, Leadgate SA, which, according to the applicant, is connected with Asiarim’s director, also brought an action against the applicant in the United States, claiming an amount of USD 22 million (EUR 19000000 approximately) as unpaid debt, the guarantee for which was the Commodore trade marks, which was definitively dismissed on 18 May 2015. That company also brought another action against the applicant, before the rechtbank Amsterdam (District Court, Amsterdam), seeking the pre-levy attachment of the applicant’s trade marks. However, it became apparent that that company, which initially presented itself as a company incorporated under Swiss law before claiming to be a company governed by Uruguayan law, had never existed, as the rechtbank Amsterdam (District Court, Amsterdam) found in its judgment of 17 July 2014 (Annex 16 to the application, p. 155). Thirdly, the applicant had to bring proceedings in the United States against Asiarim, headquartered in Nevada, United States, in order to defend its right of ownership in the international registration and to be compensated for the damage caused by that company.
21

Second, as regards the date of harvest and the date of maturity, in respect of which the applicant essentially challenged the conditions and findings of the technical examination, the Board of Appeal found as follows: ‘The characteristics ‘date of harvest’ and ‘date of eating maturity’ were defined in rather vague terms in the UPOV guidelines (TG/14/9) as was the test protocol for the resulting apple [CPVO TP/14/2], in so far as the instructions cover a wide maturity range, from early to late, and from suitable for immediate consumption to suitable for long-term storage. Effective use of the protocol guidelines requires experience in DUS testing and detailed knowledge of the seed. Instructions are given in the ‘Explanation and methods’ section in the table of characteristics of the test protocol for the apple. The instructions relating to the time of harvest and the time of eating maturity are given in points Ad 56 and Ad 57 on page 32. In the opinion of the Board of Appeal, those instructions were correctly implemented by the Examination Office. For the purposes of a good comparison, fruits of the candidate and reference varieties were harvested on the same date and (in that case) as soon as the starch regression index was approximately 5 for all the varieties concerned. The ‘time of maturity’ can be disputed, but since the GEVES examiners have experience of that seed, the Board of Appeal relies on their assessment of the time of eating maturity, which corresponds to the stage during which all the characteristics of the fruits were assessed. The characteristics of the ripe fruit of the Braeburn mutants were noted and/or measured on the same date (where possible), that is to say around mid-November, as required.’
3

Article 1(24) of Regulation No 1023/2013 provided for the insertion, in Chapter 2 of Title III of the Staff Regulations, of Section 7, entitled ‘Leave in the interests of the service’, which contains a single provision, Article 42c. According to that provision: ‘At the earliest five years before the official’s pensionable age, an official with at least ten years of service may be placed by decision of the appointing authority on leave in the interests of the service for organisational needs linked to the acquisition of new competences within the institutions. The total number of officials placed on leave in the interests of the service each year shall not be higher than 5% of the officials in all institutions who retired the previous year. The total number thus calculated shall be allocated to each institution according to their respective numbers of officials at 31 December of the preceding year. The result of such allocation shall be rounded up to the nearest whole number in each institution. Such leave shall not constitute a disciplinary measure. The duration of the leave shall correspond in principle to the period until the official reaches pensionable age. However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official. When the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired. Leave in the interests of the service shall be governed by the following rules: (a) another official may be appointed to the post occupied by the official; (b) an official on leave in the interests of the service shall not be entitled to advancement to a higher step or promotion in grade. An official thus placed on leave shall receive an allowance calculated in accordance with Annex IV. At the official’s request, the allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. In such a case, the period of service as an official on leave in the interests of the service shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2 of Annex VIII. The allowance shall not be subject to a correction coefficient.’
Judgment of the General Court (First Chamber) of 7 March 2018 — Equivalenza Manufactory v EUIPO — ITM Entreprises (BLACK LABEL BY EQUIVALENZA)

(Case T‑6/17)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark BLACK LABEL BY EQUIVALENZA — Earlier international figurative mark LABELL — Relative ground for refusal — Likelihood of confusion — Similarity of signs — 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 15, 16)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19-22, 47, 48)

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—Figurative marks BLACK LABEL BY EQUIVALENZA and LABELL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 51-57)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 11 October 2016 (Case R 690/2016-2) relating to opposition proceedings between ITM Entreprises and Equivalenza Manufactory.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 October 2016 (Case R 690/2016-2);
Judgment of the General Court (Sixth Chamber) of 3 May 2018 –

J-M.-E.V. e hijos v EUIPO — Masi (MASSI)

(Case T‑2/17)

(EU trade mark — Invalidity proceedings — Application for registration of the EU word mark MASSI — Earlier national word mark MASI — Article 56(3) of Regulation (EC) No 207/2009 (now Article 63(3) of Regulation (EU) 2017/1001) — Res judicata — Article 53(1)(a) and Article 8(2)(c) of Regulation No 207/2009 (now Article 60(1)(a) and Article 8(2)(c) of Regulation 2017/1001) — Well-known mark within the meaning of Article 6bis of the Paris Convention)

1. EU trade mark—Surrender, revocation and invalidity—Invalidity proceedings—Admissibility—Conditions (Council Regulation No 207/2009, Art. 56(3)) (see para. 24)

2. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an identical or similar earlier mark well known in a Member State—Conditions (Council Regulation No 207/2009, Arts 8(2)(c) and 53(1)(a)) (see paras 40, 75)

3. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an identical or similar earlier mark well known in a Member State—Likelihood of confusion with the earlier mark—Word marks MASSI and MASI (Council Regulation No 207/2009, Art. 8(2)(c)) (see paras 43, 76, 77)

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 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—Meaning—Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see paras 53, 54)

5. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal—Account taken by the General Court of matters of law and fact not previously raised before the departments of EUIPO—Not included (Council Regulation No 207/2009, Art. 65) (see para. 81)

6. EU trade mark—Appeals procedure—Action before the EU judicature—Power of the General Court to alter the contested decision—Limits (Council Regulation No 207/2009, Art. 65) (see para. 82)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 4 October 2016 (R 793/2015-1), relating to invalidity proceedings between Mr Masi and J-M.-E.V. e hijos.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 October 2016 (R 793/2015-1);

2. Orders EUIPO to pay, in addition to its own costs, those incurred by J-M.-E.V. e hijos, SRL;
Judgment of the General Court (Second Chamber) of 26 June 2018 –

Staropilsen v EUIPO — Pivovary Staropramen (STAROPILSEN; STAROPLZEN)

(Case T‑556/17)

(EU trade mark — Invalidity proceedings — EU word mark STAROPILSEN; STAROPLZEN — Earlier EU and national word marks STAROPRAMEN — 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—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 15, 16, 46)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

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—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 34)

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—Word mark STAROPILSEN; STAROPLZEN and word marks STAROPRAMEN (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 50, 51)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 June 2017 (Case R 236/2017-4), relating to cancellation proceedings between Pivovary Staropramen and Staropilsen.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Ninth Chamber) of 14 June 2018 –

Lion’s Head Global Partners v EUIPO — Lion Capital (Lion’s Head)

(Case T‑294/17)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark Lion’s Head — Earlier EU word mark LION CAPITAL — 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 para. 15)

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—Similarity of the marks concerned—Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 16, 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—Likelihood of confusion with the earlier mark—Word marks Lion’s Head and LION CAPITAL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23-25, 33, 37, 38)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 February 2017 (Case R 1478/2016-4), relating to opposition proceedings between Lion Capital and Lion’s Head Global Partners.

Operative part

The Court:

1. Dismisses the action;