ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fifth Chamber) of 6 April 2017 —

Policolor v EUIPO — CWS-Lackfabrik Conrad W. Schmidt (Policolor)

(Case T‑178/16)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark Policolor — Earlier EU figurative mark ProfiColor — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

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 26, 27, 60)

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 30, 43, 44)

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—Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 37)

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—Figurative marks Policolor and ProfiColor (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 40, 57, 58, 65)

5. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 55)

6. 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—Coexistence of two marks on a given market (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 66, 67)

7. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 72-74)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 29 January 2016 (Case R 346/2015-1), relating to opposition proceedings between CWS-Lackfabrik Conrad W. Schmidt and Policolor.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 15 February 2017 — M. I. Industries v EUIPO — Natural Instinct (Natural Instinct Dog and Cat food as nature intended)

(Case T‑30/16)

(EU trade mark — Opposition proceedings — Application for EU figurative mark Natural Instinct Dog and Cat food as nature intended — Earlier EU word marks INSTINCT and NATURE’S VARIETY — Genuine use of the earlier mark — Nature of the use — Article 42(2) of Regulation No 207/2009 — Rule 22(3) and (4) of Regulation (EC) No 2868/95)

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Precluded (Council Regulation No 207/2009, Art. 65) (see para. 16)

2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3)) (see paras 23, 24, 56, 57)

3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3)) (see para. 25)

4. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Probative value of the evidence — Criteria for assessment (Council Regulation No 207/2009, Arts 42(2) and (3), and 78(1)(f)) (see paras 39-41, 43)

5. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark as a trade mark — Word mark NATURE’S VARIETY (Council Regulation No 207/2009, Art. 42(2)) (see paras 64-72)

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(3)) (see para. 88)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 26 November 2015 (Case R 2944/2014-5), relating to opposition proceedings between M. I. Industries and Natural Instinct.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 November 2015 (Case R 2944/2014-5) in so far as it concludes that there is no genuine use of the earlier word mark INSTINCT;

2. Dismisses the action as to the remainder;

3. Orders EUIPO to bear, in addition to its own costs, half of the costs incurred by M. I. Industries Inc.;

4. Orders M. I. Industries to bear half of its own costs;
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Overlap between the scope of the grounds for refusal set out in subparagraphs (b) and (c) of Article 7(1) of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 7(1)(b) and (c))

(see para. 45)
Judgment of the General Court (Fifth Chamber) of 21 June 2017 —

Rare Hospitality International v EUIPO (LONGHORN STEAKHOUSE)

(Case T‑856/16)

(EU trade mark — Application for EU word mark LONGHORN STEAKHOUSE — Absolute ground for refusal — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Equal treatment and the principle of sound administration)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 22, 45)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Assessment of the descriptive nature of a sign — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 23, 24, 30)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Concept — Neologism consisting of elements descriptive of characteristics of the goods or services concerned — Whether included where the nature of the combination is not unusual (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 25)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Word mark LONGHORN STEAKHOUSE (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 31-33, 40-43)

5. 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 paras 52-57)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 12 September 2016 (Case R 2149/2015-5) concerning an application for registration of word sign LONGHORN STEAKHOUSE as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
1.

Community designs — Ground for invalidity — No individual character — Design not giving the informed user a different overall impression from that produced by the earlier design — Overall assessment of all the elements of the prior design (Council Regulation No 6/2002, Arts 6(1), and 25(1)(b)) (see paras 15-17, 35, 45)
Relations between the European Investment Bank and its staff, even though contractual in origin, are essentially governed by regulations. Under Article 31 of the EIB’s internal regulations and the first paragraph of Article 20 of its Staff Regulations, the Bank has a discretion in establishing and unilaterally changing the components of staff remuneration and consequently in setting and updating the scale of basic staff salaries.

However, in the exercise of that discretion, the EIB may determine in advance the criteria which are to apply for a given period of time to periodic adjustments of the scale of basic staff salaries, and may thus commit itself to observing such criteria when making annual adjustments to the scale over the course of that period.

In that regard, where the Bank adopts a unilateral decision on a method for calculating yearly adjustments to the scale of basic salaries, the purpose of which was to provide a framework for, and thus restrict its discretionary power, the Bank binds itself, for the period of validity of that decision, in the exercise of its discretion under the Staff Regulations, to comply with the method adopted. Consequently, the EIB cannot rely, in the context of the annual adjustment of the scale of basic staff salaries, on a discretion going beyond the criteria laid down in that method.

(see paras 46-49, 53, 60)
In accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 177(1)(d) of the Rules of Procedure of the General Court, an application must contain the pleas and arguments on which it is based as well as a summary of those pleas. That statement must be apparent from the text of the application itself and be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information.

Whilst the text of the application can be supported by references to extracts in documents annexed to it, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, the annexes having a purely evidential and instrumental function. It follows that an application, in so far as it refers to pleadings submitted to EUIPO, is inadmissible to the extent that the general references in it cannot be linked to the pleas and arguments put forward in that application itself.

The same applies where the reference pertains to a measure reproduced in the body of the application without indication of which specific points of the statement of the grounds of the application the applicant wishes to support, or which extracts of the measure in question represent the elements that may support or supplement the grounds of the application, since such incorporation is in no way different, in this case, from reference to an annex to an application. Otherwise, by simply reproducing the annexes in the body of the application, the applicants would be able to circumvent the case-law concerning the incompatibility of general references to annexes with the formal requirements laid down by the provisions of the Statute of the Court of Justice of the European Union and of the Rules of Procedure.

Thus, even if the statement submitted to the Board of Appeal is entirely reproduced in the background to the dispute presented in the application, it is not for the Court to search, either in that statement or in the extracts in the application reproducing that statement, for the arguments to which the applicant might be referring and to examine them, since those arguments are inadmissible.

(see paras 11-14)
Judgment of the General Court (Eighth Chamber) of 21 September 2017 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION)

(Case T‑789/16)

(EU trade mark — Application for the figurative EU trade mark INVOICE AUCTION — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 30, 31)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Assessment of the descriptive nature of a sign—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 32)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Figurative mark INVOICE AUCTION (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 33, 35-45)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 3 August 2016 (Case R 2201/2015-1), relating to the application for registration of the figurative sign INVOICE AUCTION as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 7 June 2017 — Mediterranean Premium Spirits v EUIPO — G-Star Raw (GINRAW)

(Case T‑258/16)

(EU trade mark — Opposition proceedings — Application for the EU word mark GINRAW — Earlier EU word marks RAW — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Evidence submitted for the first time before the General Court — Obligation to state reasons)

1. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Re-evaluation of the facts in the light of evidence produced for the first time before it—Not included (Council Regulation No 207/2009, Art. 65) (see para. 14)

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—Word marks GINRAW and RAW (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19, 77, 78)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24)

4. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity of the marks concerned—Criteria for assessment—Composite mark—Determination of dominant component(s) (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31-33)

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—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 73-75)

6. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU—Recourse by the Board of Appeal to implicit reasoning—Lawfulness—Conditions (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 88-90)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 14 March 2016 (Case R 1583/2015-4), relating to opposition proceedings between G-Star Raw and Mediterranean Premium Spirits.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 23 October 2017 – Galletas Gullón v EUIPO – O2 Holdings (Shape of a packet of biscuits)

(Case T-404/16)

(EU trade mark — Revocation proceedings — Three-dimensional EU trade mark — Shape of a packet of biscuits — Declaration of revocation — Extent of use — No alteration of distinctive character)

1. Judicial proceedings–Application initiating proceedings–Formal requirements–Identification of the subject-matter of the dispute–Brief summary of the pleas in law on which the application is based–General reference to documents annexed to the application–Inadmissibility (Rules of Procedure of the General Court, Art. 76(d); Council Regulation No 207/2009, Art. 65(2) (see paras 15, 16)

2. EU trade mark–Surrender, revocation and invalidity–Causes of revocation–Absence of genuine use of a trade mark–Use of the mark in a form differing by elements not altering the distinctive character of the mark–Subject-matter and scope of Article 15(1), second subpara., (a), of Regulation No 207/2009–Examination of alteration of distinctive character (Council Regulation No 207/2009, Art. 15(1), second para., (a), and 51(1)(a)) (see paras 26, 27)

3. EU trade mark–Surrender, revocation and invalidity–Causes of revocation–Absence of genuine use of a trade mark–Use of the mark in a form differing by elements not altering the distinctive character of the mark–Three-dimensional mark constituted by the shape of a packet of biscuits (Council Regulation No 207/2009, Arts 15(1)(a) and 51(1)(a)) (see paras 29-34)

4. EU trade mark–Surrender, revocation and invalidity–Causes of revocation–Absence of genuine use of a trade mark–Proof of use of the earlier mark–Genuine use–Meaning–Criteria for assessment (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 38-44, 51, 55, 60, 62, 63)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 19 May 2016 (Case R 1613/2015-4), relating to revocation proceedings between O2 Holdings Ltd and Galletas Gullón.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 May 2016 (Case R 1613/2015-4), relating to revocation proceedings between O2 Holdings Ltd and Galletas Gullón;
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Genuine use—Meaning—Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, tenth recital and Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3))

(see paras 23-25)
Article 17a(1) of the Staff Regulations, according to which an official has the right to freedom of expression, with due respect to the principles of loyalty and impartiality, specifically sets out, as do Articles 11, 12 and 12b of the Staff Regulations, the duty of loyalty incumbent upon every official. By virtue of that duty, an official must, inter alia, refrain from conduct detrimental to the dignity and respect due to the institution and its authorities.

Moreover, an official may not, by oral or written expression or by actions of any other nature, act in breach of his obligations, arising inter alia from Articles 11, 12, 12b and 17a of the Staff Regulations, towards the European Union that he is supposed to serve, thereby destroying the relationship of trust between himself and the latter and making it thereafter more difficult, if not impossible, for the work of the European Union to be carried out in cooperation with that official. Furthermore, it is apparent, inter alia, from the references in the first paragraph of Article 11 of the Staff Regulations to ‘duties’ and ‘conduct’, Article 12 of those regulations to ‘any action’, and Article 12b thereof to ‘an outside activity’, that the preservation of the relationship of trust is required not only in the performance of specific tasks entrusted to an official but extends to the whole relationship between the official and the European Union.

In that regard, denigrating statements, impugning the honour of all those persons who hold positions in the hierarchy of the European institutions, and subsequently, of the institutions themselves, included in an article to be published by an official, suggests grossly reprehensible conduct, such as harassment, on the part of the hierarchy of the European institutions, on the one hand, and a lack of suitable measures to combat such conduct within the institutions, on the other, are capable of undermining both the image of and the dignity and respect due, as a general rule, to all persons who hold a position in the hierarchy of the institutions and, hence, the institutions themselves. Those statements therefore constitute a breach of the duty of loyalty.

(see paras 54-56, 58, 59)
Judgment of the General Court (Third Chamber) of 19 October 2017 — Bernaldo de Quirós v Commission

(Case T‑649/16)

(Civil service — Officials — Assignment — Transfer from a head of unit post to an advisor post — Interests of the service — Misuse of powers — Right to be heard and duty of care — Principle of equivalence of posts)

1. Officials—Organisation of departments—Assignment of staff—Administration’s discretion—Limits—Interests of the service—Compliance with the principle of assignment to an equivalent post—Resassignment decision not constituting a disciplinary measure (Staff Regulations, Art. 7(1)) (see paras 22, 24)

2. Officials—Organisation of departments—Assignment of staff—Administration's discretion—Scope—Judicial review—Limits (Staff Regulations, Art. 7(1)) (see paras 25-27, 37, 40)

3. Officials—Organisation of departments—Assignment of staff—Reassignment—Compliance with the rule on correspondence between grade and post—Scope (see para 45)

4. Actions brought by officials—Pleas in law—Misuse of powers—Concept—Decision in the interest of the service—No misuse of powers (see paras 60, 64)

5. Officials—Organisation of departments—Assignment of staff—Reassignment in the interest of the service—Right of the person concerned to be heard—None (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Staff Regulations, Art. 7(1)) (see paras 69-71, 76)

6. Officials—Organisation of departments—Assignment of staff—Administration’s duty to have regard for the interests of officials—Scope—Account taken of the interests of the staff member concerned (Staff Regulations, Art. 24) (see paras 80, 81, 83)

Re:

Application based on Article 270 TFEU seeking annulment of the Commission decision of 30 November 2015 changing the applicant’s assignment, from 1 December 2015, from the post of Head of the Traineeships Office Unit of the Youth and Sport Directorate within the Education and Culture Directorate General (DG) to the post of Advisor at the Modernisation of Education II: Education policy and programme, Innovation, EIT and MSCA Directorate within that same DG.

Operative part

The Court:

1. Dismisses the action;
Officials—Promotion—Complaint by a candidate not promoted—Rejection decision—Obligation to state reasons—Scope—General and stereotypical statement of reasons equivalent to a complete absence of a statement of reasons—Assessment in the light of the factual and legal context of the adoption of the contested measure

(Art. 296 TFEU; Staff Regulations of Officials, Arts 25, second para. and 90(2))

(see paras 32-35, 50)