ddrg/super_eurlex huggingface dataset:
47

To that end, the Commission considered whether the Italian authorities had unilaterally imposed on the applicant a public service obligation within the meaning of Article 1 of Regulation No 1191/69. In the first place, the Commission found that the applicant’s initiative in requesting the renewal of the licence specifications for all 16 years of the period under review was incompatible with the alleged unilateral imposition of a public service obligation. In the second place, it pointed out that the fact that the specifications stipulated the fares, the routes and the frequency and timing of the services did not necessarily mean that unilateral public service obligations had been imposed on the applicant as a result of the licences granted. In the third place, the Commission considered that the applicant had not adduced any evidence to prove that it had actually provided mail transport services or to substantiate the net costs involved. In the fourth place, as regards the fares that the applicant was able to charge for the passenger transport services it provided, the Commission took the view that the fact that they were approved by the MIT and that reference was made to regulated fares did not, in itself, mean that those fares were not initially set by the operators. In any event, those regulated fares do not fall within the definition of tariff obligation within the meaning of Article 2(5) of Regulation No 1191/69, as that provision does not apply to obligations arising from general measures of price policy applying to the economy as a whole or to measures taken with respect to transport rates and conditions in general with a view to the organisation of the transport market or of part thereof. In the fifth place, as regards the MIT’s rejections of the applicant’s requests to establish new services or to expand existing services, the Commission observed that those rejections were the result of the way in which the operation of scheduled passenger transport services was regulated under Law No 1822/1939, which only allowed the creation or expansion of new services in so far as the new licences did not impinge on the rights of existing operators. Furthermore, the Commission found that, in general terms, the applicant had not adduced any evidence to show that it had submitted requests to change the details set out in the specifications or that those requests had been rejected by the MIT.
49

In that regard, firstly, the applicant takes the view that consolidated real-time datafeed providers are incapable of providing an effective change of service provider to TR’s customers because, by excluding them from the ERL and TPDL licence terms, they cannot offer a fully integrated competing service. Secondly, the likelihood of third parties developing mapping tables is theoretical and extremely remote. Thirdly, the entire burden and cost of switching provider fall upon TR’s customers, even though it is manifestly unlikely that they will switch provider due to the cost and complexity entailed in such a switch, the modification of their systems and the additional negotiations with third parties that the modification would entail, the nature of the market for consolidated real-time datafeeds, and the cost and complexity related to using a third party’s mapping table. Fourthly, TR’s customers are unlikely to work with a conversion tool developed by a third party, rather than a competitor, since these tools require a high degree of speed and reliability. The reliance on a third party would in fact be a risk for the integrity and accuracy of the code mapping. Furthermore, possible collaboration with a third-party developer in the design of a mapping table would be ineffective, given the impossibility of exchanging the required information regarding RICs. Fifthly, the reason why competing consolidated real-time datafeed providers cannot offer a comparable service is also connected to the fact that ‘chain RICs’ (a method of accessing a group of instruments by using a single identifier) are excluded from the licences offered by TR, while banks and financial institutions need access to chain RICs since they are one of the key methods of accessing data. As a result of the fact that, in accordance with the commitments, only the most basic data are available, it would be impossible for an alternative provider to rebuild or map to these chains without being able to access the underlying data. Finally, the applicant submits that, to its knowledge, none of TR’s customers have used a competing consolidated real-time datafeed provider. In a situation where a large number of companies seek to obtain and use the licences, there would be proof of that fact on the market. However, according to the applicant, this is not the case, and for that reason it reiterates, as already indicated during the administrative procedure, that such transitions to another provider are very unlikely.
20

The applicant claims that the three conditions for establishing the non-contractual liability of EUIPO on the basis of Article 118(3) of Regulation No 207/2009 are met in the present case. First, according to the applicant, the decision of the Opposition Division of 14 May 2013 is an unlawful act constituting a sufficiently serious breach of law, within the meaning of the case-law on non-contractual liability, in so far as it is based on the misapplication of Rule 19(2)(a) of Regulation No 2868/95 and was adopted in breach of the principle of good faith and the audi alteram partem rule. The applicant submits in that respect that, by that decision, its opposition was rejected on the ground that it did not adduce evidence of the existence, validity and scope of protection of the earlier mark, whereas, according to the information which was sent to it by letter of 22 June 2012 (see paragraph 4 above), such evidence was not required in cases such as that in the present proceedings where the opposition was based on the international registration designating the European Union and where the language of the proceedings was English.
Judgment of the General Court (Sixth Chamber) of 18 March 2016 —

Grupo Bimbo v OHIM (BIMBO)

(Case T‑33/15)

‛Community trade mark — Application for Community word mark BIMBO — Absolute grounds for refusal — Absence of distinctive character — Descriptive character — Article 7(1)(b) and (c) and 7(3) of Regulation (EC) No 207/2009’

1. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 15)

2. Community 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. 19)

3. Community trade mark — Registration procedure — Examination of the application — Absolute grounds for refusal — Examination at any time (Council Regulation No 207/2009, Art. 7) (see para. 25)

4. Community trade mark — Registration procedure — Publication of the application — Measure not guaranteeing registration of the trade mark (Council Regulation No 207/2009, Arts 37 and 39(2)) (see para. 26)

5. Community trade mark — Definition and acquisition of the Community 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 BIMBO (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 43-49, 58, 59)

6. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (Council Regulation No 207/2009) (see para. 56)

7. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Separate examination of the various grounds for refusal — Interpretation of the grounds for refusal in the light of the public interest underlying each of them — Assessment of the distinctiveness of a mark by carrying out only an analysis of its descriptive character — Not permissible (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see paras 63, 64)

8. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 68-72, 87)

Re:

ACTION for annulment of the decision of the Second Board of Appeal of OHIM of 19 November 2014 (Case R 251/2014-2) concerning an application for registration of the word sign BIMBO as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Single Judge) of 19 February 2016 —

Infinite Cycle Works v OHIM — Chance Good Ent. (INFINITY)

(Case T‑30/15)

‛Community trade mark — Opposition proceedings — Application for the Community word mark INFINITY — Earlier Community word mark INFINI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community 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. 16)

2. Community 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 (Council Regulation No 207/2009, Art. 65) (see paras 23, 60)

3. Community trade mark — Definition and acquisition of the Community 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 27-31, 54)

4. Community trade mark — Definition and acquisition of the Community 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 INFINITY and INFINI (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33, 34, 55, 56)

5. Community trade mark — Definition and acquisition of the Community 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. 38)

6. Community trade mark — Definition and acquisition of the Community 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. (1)(b)) (see paras 46, 47)

7. Community trade mark — Definition and acquisition of the Community 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. 58)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 October 2014 (Case R 2308/2013-2) relating to opposition proceedings between Chance Good Ent. Co., Ltd, and Infinite Cycle Works Ltd.

Operative part

The Court:

1. Dismisses the action;
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 — Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19, 21)
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 36, 40)
Judgment of the General Court (Ninth Chamber) of 15 December 2016 — Novartis v EUIPO (Representation of a grey curve and representation of a green curve)

(Joined Cases T‑678/15 and T‑679/15)

(EU trade mark — Applications for EU figurative trade marks representing a grey curve and representing a green curve — Absolute ground for refusal — Distinctive character — Simplicity of the sign — Article 7(1)(b) of Regulation (EC) No 207/2009)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20, 21)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 22, 23)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark consisting of the two-dimensional representation of a product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 24)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing a grey curve and figurative mark representing a green curve (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27-30, 37, 40-42)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Recognition of the distinctiveness of the sign not subject to a finding of a certain level of creativity or linguistic or artistic imagination (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 38, 39)

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. 45)

Re:

Two actions brought against the decisions of the Fifth Board of Appeal of EUIPO of 23 September 2015 (Cases R 78/2015-5 and R 89/2015-5), concerning applications for registration of two figurative signs, representing a grey curve and representing a green curve, as EU trade marks.

Operative part

The Court:

1. Annuls the decisions of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 September 2015 (Cases R 78/2015-5 and R 89/2015-5);

2. Allows the appeals brought by Novartis AG before that Board of Appeal;
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. 20)
The provisions of Articles 256 and 263 TFEU provide that the General Court is to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties, subject to conditions for admissibility, relating in particular to the fact that the proceedings must be instituted within two months of the publication of the measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Admissibility is one of the criteria for an action which falls within the jurisdiction of the Court, particularly because it must examine it of its own motion.

It is not Article 81 of Regulation No 207/2009 relating to restitutio in integrum which applies in circumstances where an action brought before the General Court against a decision of a Board of Appeal of EUIPO may be regarded as out of time by the Court, but the provisions applicable to the Court, namely, in addition to Article 263 TFEU, the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, according to which ‘no right shall be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure’.

Judicial procedure is not, moreover, from the outset divided into two parts, as is provided for in Article 81 of Regulation No 207/2009, with, first, an action being brought and, secondly, the filing of an application for restitutio in integrum on which the Court would rule separately in order to assess whether the action is admissible in the light of the time limit for bringing that action. It is within the very context of the proceedings initiated after an action has been brought that the admissibility of that action is in principle examined and it is only if a plea of inadmissibility requesting that the Court rule in that regard without going to the substance of the case is brought before the Court or if the Court raises, in that regard, of its own motion an absolute bar to proceeding, that it may give a separate ruling as to admissibility and then rule on the substance if it nevertheless accepts that the action is admissible.

(see paras 45, 46)
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 — Requirement of solid and objective evidence

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

(see paras 21, 23, 33)
Judgment of the General Court (Appeal Chamber) of 5 October 2016 —

ECDC v CJ

Case T‑395/15 P

‛Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard’

1. Officials — Members of the contract staff — Early termination of a fixed-term contract by notice — Right to be heard — Scope — Termination without warning the person concerned — Infringement — Consequences (Charter of Fundamental Rights of the European Union, Arts 41(2)(a), 47 and 48; Conditions of Employment of Other Servants of the European Communities, Art. 47(b)(ii)) (see paras 53-55, 57, 59, 60, 62, 63, 65, 80)

2. Officials — Principles — Rights of defence — Obligation to hear the person concerned before adopting a measure adversely affecting him — Scope (Charter of Fundamental Rights of the European Union, Art. 41(2)) (see para. 73)

Re:

APPEAL brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015, CJ v ECDC (F‑159/12 and F‑161/12, EU:F:2015:38), seeking to have that judgment set aside in part.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (First Chamber) of 20 July 2016 — Reisenthel v EUIPO (keep it easy)

(Case T‑308/15)

‛EU trade mark — Application for word mark keep it easy — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14, 15)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16, 17)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark keep it easy (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18, 29, 31, 32)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark composed of several elements — Account taken of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 23)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 26 March 2015 (Case R 2659/2014-5), concerning an application for registration of the word sign keep it easy as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 20 October 2016 —

Czech Republic v Commission

(Case T‑141/15)

‛EAGF and EAFRD — Expenditure excluded from financing — Protection of vineyards — Expenditure incurred by the Czech Republic — Legal certainty — Legitimate expectations’

1. Agriculture — Common organisation of the markets — Wine — Support measures — Aid programmes — Referral to the Commission — Programme becoming applicable on the expiry of three months following its referral — No irrebuttable presumption that the progamme compatible with EU law (Art. 263, sixth para., TFEU; European Parliament and Council Regulations No 966/2012, Art. 54(1), and No 1306/2013, Art. 52(1); Council Regulation No 479/2008, Art. 5(2)) (see paras 31, 33, 38, 39, 44, 52-54)

2. Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Silence or inaction of an institution — Assimilation to an implied decision of the institution concerned — Exclusion — Limits (Art. 263 TFEU) (see para. 41)

3. Agriculture — Common organisation of the markets — Wine — Support measures — Aid programmes — Referral to the Commission — Programme becoming applicable on the expiry of three months following its referral — Modifiable and non-definitive character of a programme which has become applicable (European Parliament and Council Regulation No 1306/2013, Art. 52(1); Council Regulation No 479/2008, Arts 5(2), 8(2), and 22(b)) (see paras 61-65)

4. Acts of the institutions — Choice of legal basis — EU rules — Requirements of clarity and foreseeability — Express indication of the legal basis (see para. 92)

5. EU law — Principles — Protection of legitimate expectations — Conditions — Invocation by a Member State — Whether permissible (see paras 93-95)

6. Agriculture — Financing by EAGF and EAFRD — Clearance of accounts — Period capable of being the subject-matter of a financial correction — Period subsequent to the date of the written communication of the results of the checks — Whether permissible in the event of persistence of the irregularities (European Parliament and Council Regulation No 1306/2013, Art. 52(1); Commission Regulation No 885/2006, Arts 11 and 16) (see paras 104, 105, 109-111)

Re:

APPLICATION under Article 263 TFEU for the annulment of Commission Implementing Decision (EU) 2015/103 of 16 January 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 16, p. 33), in so far as it excludes the expenditure envisaged by the Czech Republic under EAGF for a degree of protection of vineyards for the years 2010 to 2012, coming to a total of EUR 2123199.04.

Operative part

The Court:

1. Dismisses the action;