ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 19 October 2017 – Leopard v EUIPO – Smart Market (LEOPARD true racing)

(Case T-7/15)

(EU trade mark — Opposition proceedings — Application for figurative EU trade mark LEOPARD true racing — Prior figurative EU trade mark leopard CASA Y JARDIN — 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–Appeals procedure–Action before the EU judicature–Jurisdiction of the General Court–Review of the lawfulness of decisions of the Boards of Appeal–Annulment or variation for reasons appearing after judgment was delivered–Not included–Taking into account the EUIPO decision revoking the earlier mark which formed the basis for the opposition, adopted subsequent to the decision of the Board of Appeal on the opposition–Not permissible (Council Regulation No 207/2009, Arts 55(1) and 65(2)) (see paras 21, 22)

2. 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–Scope–Limits (Council Regulation No 207/2009, Art. 65(2) and (3)) (see para. 25)

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–Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 77, 78)

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 LEOPARD true racing and leopard CASA Y JARDIN (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 32, 48, 76, 82-87)

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–Similarity between the goods or services in question–Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33, 38, 44)

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–Similarity of the marks concerned–Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 51-53, 68)

Application for

ACTION brought against the decision of the First Board of Appeal of EUIPO of 2 October 2014 (Case R 1866/2013-1) concerning opposition proceedings between Smart Market and Leopard.

Operative part

The Court:

1. Dismisses the action;
1.

Annuls Commission Implementing Decision (EU) 2015/1119 of 22 June 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 182, p. 39) insofar as it made a financial correction based on non-compliance with the requirements of Council Regulation (EC) No 73/2009 of19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 and of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector as regards the controls carried out by Hungary to ensure compliance by farms with the obligations flowing from Articles 4 and 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources;
Agriculture—Uniform legislation—Protection of geographical indications and designations of origin for agricultural products and foodstuffs—Regulation No 1151/2012—Allocation of powers as between the Member States and the Commission

(European Parliament and Council Regulation No 1151/2012, Recital 58 and Art. 50)

(see paras 34-37)
A design is deemed to have been made available once the party relying thereon has proven the events constituting disclosure. In order to rebut that presumption, the party disputing disclosure must establish to the requisite legal standard that, in the circumstances of the case, it cannot reasonably be assumed that those events have become known in the normal course of business to the specialist circles in the sector concerned.

The disclosure of an earlier design cannot be proven by means of probabilities or suppositions, but has to be demonstrated by solid and objective evidence of actual disclosure of the earlier design on the market.

The evidence provided by the applicant for a declaration of invalidity must be considered in its entirety. Although some of that evidence may be insufficient in itself to prove disclosure of an earlier design, when combined or read in conjunction with other documents or information, it may nevertheless contribute to establishing disclosure.

In addition, in order to assess the evidential value of a document, it is necessary to verify the plausibility and the accuracy of the information which that document contains. It is necessary to take account of, inter alia, the origin of the document, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable.

It follows from the EU legislation in force which is applicable to Community designs that, first, the applicant for a declaration of invalidity is free to choose the evidence which it considers useful to submit to the European Union Intellectual Property Office (EUIPO) in support of its application for a declaration of invalidity and, second, EUIPO is required to examine all evidence submitted in order to establish whether it actually proves disclosure of the earlier design.

(see paras 22-26)
1.

Fixes the amount of compensation to be paid by the European Commission to Vakakis kai Synergates — Symvouloi gia Agrotiki Anaptixi AE Meleton in accordance with the judgment of 28 February 2018, Vakakis kai Synergates v Commission (T‑292/15), at EUR 234353, together with default interest with effect from 28 February 2018 until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points;
Judgment of the General Court (Fourth Chamber) of 12 December 2018 –

Interessengemeinschaft privater Milchverarbeiter Bayerns and Others v Commission

(Joined Cases T‑722/15 to T‑724/15)

(State aid — Aid for the Bavarian dairy sector — Financing of milk quality tests — Decision declaring the aid to be incompatible with the internal market — Right to participate in the administrative procedure — Article 108(2) TFEU — Article 6(1) of Regulation (EC) No 659/1999)

1. State aid — Examination by the Commission — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Right of the aid beneficiary to be sufficiently associated with the proceedings (Art. 108(2) TFEU; Council Regulation No 659/1999, Arts 1(h) and 6) (see paras 41-44, 56, 59)

2. State aid — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Exclusion of those parties from rights of defence (Art. 108(2) TFEU) (see paras 41, 67)

3. State aid — Examination by the Commission — Decision to open the formal investigation procedure provided for in Article 108(2) TFEU — Evolution of the Commission’s position at the conclusion of the procedure — Divergence between the opening decision and the final decision — Whether permissible (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 7) (see para. 45)

4. Actions for annulment — Subject matter — Annulment in part — Condition — Severability of the contested provisions — Objective criterion — Requirement not met (Art. 263 TFEU) (see paras 75, 79-81)

5. State aid — Commission decision finding aid incompatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Arts 107 TFEU and 108 TFEU) (see para. 82)

Re:

Application under Article 263 TFEU seeking annulment in part of Commission Decision (EU) 2015/2432 of 18 September 2015 concerning State Aid SA.35484 (2013/C) (ex SA.35484 (2012/NN)) granted by Germany in respect of milk quality tests pursuant to the Milk and Fat Law (OJ 2015 L 334, p. 23).

Operative part

The Court:

1. Annuls Articles 1 to 4 of Commission Decision (EU) 2015/2432 of 18 September 2015 concerning State Aid SA.35484 (2013/C) (ex SA.35484 (2012/NN)) granted by the Federal Republic of Germany in respect of milk quality tests pursuant to the Milk and Fat Law in so far as they state that the granting of State aid by the Federal Republic of Germany is incompatible with the internal market as regards milk quality tests carried out in Bavaria and order the recovery of that aid;
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 — Unambiguous wording of the form of order sought by the applicant

(Statute of the Court of Justice, Arts 21 and 53; Rules of Procedure of the General Court, Art. 76)

(see para. 144)
89

The applicant’s failure to refer to such discrimination in the application is of particular significance in the present case. The refusal to allow the Russian guests access to the Parliament cannot be read in isolation from its context. In particular, it is apparent from the case file that, when the action was brought, the applicant had in his possession the press service’s email in which the Parliament refused to provide him with the equipment needed for the press conference, also scheduled for 16 June 2015. That refusal is based on two grounds. Firstly, the press service’s email reiterates the restrictions on access imposed by the Parliament on Russian diplomats and on Russian politicians, being more specifically members of the Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (State Duma of the Federal Assembly of the Russian Federation) and of the Soviet Federatsii Federal’nogo Sobrania Rossiskoï Federatsii (Council of the Federation of the Federal Assembly of the Russian Federation), as evidenced by the Parliament’s responses to the measures of organisation of procedure referred to in paragraph 13 above. Secondly, that same email mentions the risk of disturbance of the Parliament’s activities caused by the presence of Messrs Petrov and Biryukov. Moreover, the objective of the contested refusal was to prohibit the Russian guests from entering buildings of the Parliament, a political institution, in order to attend, at the invitation of a Member, a meeting having a political topic, being ‘European cooperation’. Furthermore, Messrs Petrov and Biryukov hold high positions within the Russian political party Rodina and Mr Sotnichenko is presented as a university professor of international relations. The meeting in question also purported to be part of a political forum, the ‘International Russian Conservative Forum’, which had been attended by the three aforementioned persons and which the Parliament had just criticised in the resolution of 10 June 2015. Lastly, at the hearing the applicant confirmed that the events of 16 June 2015, to which he had invited those persons, were intended to allow them to express their political opinion on ‘European cooperation’ in order to provide the forum entitled ‘International Russian Conservative Forum’ with the opposite viewpoint to that expressed in the resolution of 10 June 2015, and also to pursue the work commenced there. In those circumstances, an applicant who is familiar with politics and reasonably diligent had to be sensitive to the political climate surrounding the contested refusal of access.
52

Fifth, the applicants complain that the EMA failed to provide a sufficient statement of reasons for taking the view that the batch 1 study reports do not enjoy a general presumption of confidentiality and dispute the grounds on which that finding was based. Inasmuch as the applicants’ arguments must in reality be understood as a complaint alleging infringement of the obligation to state reasons, they must be rejected. Indeed, the contested decision contains full and detailed reasoning which makes it possible to understand fully the reasons for the EMA’s finding that there is no general presumption of confidentiality in respect of the information at issue. In particular, the EMA observes that the general presumption of confidentiality is contrary to the provisions of the FEU Treaty and of Regulation No 1049/2001 on transparency. It recalls in that regard the content of Article 2(3) and (4) and of Article 4(6) of Regulation No 1049/2001. As regards the assertion made by the applicants of the existence of a risk of unfair use of the data in order to justify the general presumption of confidentiality, the EMA observes that data submitted in the context of an MA application are protected by a period of data exclusivity provided for in Articles 13 and 13a of Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (OJ 2001 L 311, p. 1). In that regard, the EMA observes that the release of information in accordance with Regulation No 1049/2001 cannot undermine the protection put in place by Article 39 of the TRIPS Agreement and Articles 13 and 13a of Directive 2001/82. The contested decision states, moreover, that, in accordance with Article 16 of Regulation No 1049/2001, the EMA’s decision to grant access to documents is without prejudice to intellectual property rights which may exist over documents or their content and cannot be interpreted as an explicit or implicit permission or licence for the requestor to use, reproduce, publish, disclose or otherwise exploit the documents or their content. The EMA further states that the risk of documents being used to circumvent data exclusivity in breach of Directive 2001/82 and Regulation No 1049/2001 cannot constitute a ground for refusing access to documents, since otherwise in practice almost full paralysis of the EMA’s relating to access to documents would ensue. Such an approach would be contrary to the transparency provisions in the FEU Treaty and in Regulation No 1049/2001. The EMA observes lastly that the risk of unlawful use of documents released in accordance with Regulation No 1049/2001 is always present and other EU and national legislation provide related remedies. Accordingly, the reasons set out in the contested decision for rejecting the existence of a general presumption of confidentiality in respect of the batch 1 study reports fulfil the requirement to state reasons laid down in Article 296 TFEU.
125

The Council, supported by the Commission, takes the view that, in any event, the claim for compensation for the non-material damage allegedly suffered should be rejected as unfounded. In that regard, it maintains that, in the disputed acts, the applicant was not stigmatised as an organisation which, in itself, constitutes a threat to international peace and security, and that the applicant has offered no evidence that such is the case. It was merely identified as an organisation that had been involved in the purchase of various items that could be used in programmes sanctioned by United Nations Security Council Resolution 1737, which was sufficient to justify the inclusion of its name on the disputed lists. The Council contends that the applicant has not adduced any evidence to prove that it has suffered any non-material damage as a result of the adoption of those acts, as is required by the case-law (order of 17 February 2012, Dagher v Council, T‑218/11, not published, EU:T:2012:82, paragraph 46). There is no evidence that it had a good reputation internationally, that it lost any business as a result of injury to that reputation, or that it had spent money on advertising or other means to restore that reputation. The newspaper article annexed to its application concerning the estimated cost of a global advertising campaign is irrelevant since it relates to a company unrelated to the applicant, in an unrelated branch of business and on a different continent from the applicant and unrelated to the restrictive measures taken by the European Union. The applicant’s claims in the reply provide no evidence of any injury to its reputation and, consequently, of any non-material damage linked to that. In any event, as the ECtHR held in paragraph 22 of the judgment of 19 July 2011, Uj v. Hungary (CE:ECHR:2011:0719JUD002395410), there is a difference between the damage to the commercial reputation of a company and damage to the reputation of an individual concerning his or her social status, with the former being devoid of a moral dimension. The Court itself has referred to that case-law in a case concerning restrictive measures (judgment of 12 February 2015, Akhras v Council, T‑579/11, not published, EU:T:2015:97, paragraph 152). By asking the Court to appoint an expert, by way of a measure of inquiry, the applicant is, it is claimed, attempting to circumvent the fact that the burden of proof falls on the applicant to prove the existence of the damage it alleges and to quantify it. If the Court were to take the view that the European Union’s non-contractual liability has been incurred, it should find, in accordance with the case-law, that the annulment of the disputed acts constitutes adequate compensation for the non-material damage suffered by the applicant. In any event, the amount of EUR 1 million claimed by the applicant by way of compensation for non-material damage is excessive, in view of the case-law, and is unsubstantiated.
103

The explanation provided for the first time in the reply, to the effect that the hot-rolled coils purchased from LISCO are ‘black coils’, as indicated in Exhibit 56 to the reply to the anti-dumping questionnaire, that is, semi-finished products of which the few products which were sold and not consumed in the manufacture of the product concerned are listed in the table in Exhibit 6 headed ‘Reconciliation of sales’ and resulting from the verification, with the effect that all the other ‘black coils’ were consumed in the manufacture of the product concerned, must, in any event, be rejected as out of time, since the Commission was no longer able to verify the accuracy of the data in that table, whereas there was nothing to prevent the applicant from providing those clarifications, in particular, in response to the provisional or definitive findings and to the Commission’s repeated requests for accurate information on the different hot-rolled coils consumed in the manufacture of the product concerned. The Commission adds that the tables in Exhibit 56 to the reply to the anti-dumping questionnaire fail to set out the sales of ‘black coils’, since the number corresponding to the ‘Sales’ lines is 0 for the four quarters of 2013, which conclusion cannot be altered by the mere submission of the aforementioned table in Exhibit 6 during the verification, and that, by comparing the data relating to the applicant’s total consumption of hot-rolled coils over the investigation period as set out in the tables in the aforementioned Exhibit 56 (TWD [confidential]) and those relating to the consumption of hot-rolled coils declared in the aforementioned Exhibit 54 (TWD [confidential]), the consumption indicated in the former is clearly greater than that set out in the latter, which indicates that the consumption of hot-rolled coils did not relate solely to the manufacture of the product concerned, the Commission’s request for information on the volumes consumed in order to verify the accuracy of the information provided by the applicant was clearly warranted.
Judgment of the General Court (Ninth Chamber) of 13 December 2016 — Apax Partners v EUIPO — Apax Partners Midmarket (APAX)

(Case T‑58/16)

(EU trade mark — Opposition proceedings — Application for the EU word mark APAX — Earlier international word mark APAX — Relative ground for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(a) and (b) of Regulation (EC) 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 21, 22, 57)

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. 26)

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 APAX and APAX (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 29, 58, 61)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

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—Similarity between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 30)

6. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of legality—EUIPO’s previous decision-making practice—Relevance (see paras 36-38)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 26 November 2015 (Case R 1441/2014-2), relating to opposition proceedings between Apax Partners Midmarket and Apax Partners.

Operative part

The Court:

1. Dismisses the action;
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 paras 18, 19)