ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Ninth Chamber) of 12 May 2016 —

Chung-Yuan Chang v EUIPO — BSH Hausgeräte (AROMA)

(Case T‑749/14)

‛EU trade mark — Invalidity proceedings — International registration designating the European Union — Word mark AROMA — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

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 — Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies — Not included (Council Regulation No 207/2009, Art. 65) (see para. 16)

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 — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 22)

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 23, 29, 45)

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 — Marks devoid of any distinctive character — Word mark AROMA (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see paras 26, 37-42, 61-64)

5. 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. 57)

6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 58)

7. 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 59, 60)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 4 September 2014 (Case R 1887/2013-4), relating to invalidity proceedings between Peter Chung-Yuan Chang and BSH Hausgeräte.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 September 2014 (Case R 1887/2013-4);
The concept of bad faith referred to in Article 52(1)(b) of Regulation No 207/2009 relates to a subjective motivation on the part of the trade mark applicant, namely a dishonest intention or other ‘sinister motive’. It involves conduct which departs from accepted principles of ethical behaviour or honest commercial and business practices.

In order to assess whether a depositor is acting in bad faith, it is necessary inter alia to examine whether he intends to use the mark applied for. In that context, it should be noted that the essential function of a trade mark is to ensure that the consumer or end-user can identify the origin of the product or service concerned by allowing him to distinguish that product or service from those of different origin, without any confusion.

The intention to prevent the marketing of a product may, in certain circumstances, be an element of bad faith on the part of the applicant. That is in particular the case when it becomes apparent, subsequently, that the latter applied for registration of a European Union trade mark without intending to use it, solely with a view to preventing a third party from entering the market.

The intention of the applicant at the relevant time is a subjective factor which must be assessed by taking into consideration all the relevant factors specific to the particular case which pertained at the time of filing the application for registration of a sign as a European Union trade mark. Those grounds are normally established by reference to objective criteria, including, in particular, the commercial logic underlying the filing of the application for registration.

In the context of the overall analysis undertaken pursuant to Article 52(1)(b) of Regulation No 207/2009, account may also be taken of the origin of the contested sign and its use since its creation, the commercial logic underlying the filing of the application for registration of that sign as a European Union trade mark, and the chronology of events leading up to that filing.

Where an applicant seeks to rely on the ground of absolute invalidity, it is for that party to prove the circumstances which substantiate a finding that the European Union trade mark proprietor had been acting in bad faith when it filed the application for registration of that mark.

(see paras 28-33)
1.

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Recourse to the constructed value — Calculation of production costs on the basis of accounting registers — Derogation — Costs linked to the production and sale of the product subject to the investigation not reasonably reflected in those registers — Burden of proof borne by the institutions — Judicial review — Scope (Council Regulations No 1972/2002, fourth recital, and No 1225/2009, Arts 2(3), second para., and 5, first and second paras) (see paras 32-36, 40-63)
1.

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Recourse to the constructed value — Calculation of production costs on the basis of accounting registers — Derogation — Costs linked to the production and sale of the product subject to the investigation not reasonably reflected in those registers — Burden of proof borne by the institutions — Judicial review — Scope (Council Regulations No 1972/2002, fourth recital, and No 1225/2009, Arts 2(3), second para., and 5, first and second paras) (see paras 45-49, 53-77)
Competition—Fines—Amount—Determination—Criteria—Gravity of the infringement—Determination of the fine in proportion to the factors for assessment of the gravity of the infringement—Assessment according to the nature of the infringement

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3), Commission Notice 2006/C 210/02, points 19 to 23)

(see paras 311, 312)
Judgment of the General Court (First Chamber) of 14 March 2017 —

Hersill v EUIPO — KCI Licensing (VACUP)

(Case T‑741/14)

(EU trade mark — Opposition proceedings — Application for the EU word mark VACUP — Earlier EU word marks MINIVAC and V.A.C. — No genuine use of the earlier mark — Article 42(2) and (3) of Regulation (EC) No 207/2009)

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 18-23)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 14 August 2014 (Case R 1520/2013-2), relating to opposition proceedings between KCI Licensing and Hersill.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 August 2014 (Case R 1520/2013-2);

2. Orders EUIPO to bear its own costs and to pay those incurred by Hersill, SL;
Both Article 299 TFEU and Article 79(2) of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union confer power on the Commission to adopt an enforceable decision for recovery of a debt notwithstanding the fact that the amount concerned by that decision is associated with the implementation of the grant agreements and is therefore ‘contractual’ in nature. Neither Article 299 TFEU nor Article 79(2) of that regulation make a distinction according to whether the amount whose establishment is formalised by an enforceable decision is contractual or non-contractual in origin.

Furthermore, according the Commission, the power to adopt unilateral measures for the recovery of a contractual debt does not infringe Article 47 of the Charter of Fundamental Rights of the European Union in so far as the co-contractor concerned has an effective remedy against that unilateral measure. In fact, that co-contractor has the possibility, provided that the contract in question contains an arbitration clause within the meaning of Article 272 TFEU, of bringing an action before the EU Court with both Article 263 TFEU and Article 272 TFEU as its legal basis. In that action, that co-contractor may not only challenge the legality of the Commission’s decision, relying on pleas based on the Treaty or on any rule of law relating to its application, but also raise pleas and arguments based on the contract or on the law applicable to it and request the EU Court to rule on the merits of the contractual dispute between it and the Commission by exercising, in that respect, its unlimited jurisdiction under Article 272 TFEU.

(see paras 197, 198, 209, 213)
Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Infringement of the principle of individual responsibility — None — Infringement of the presumption of innocence — None

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48)

(see paras 66-75)
Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Restrictive measures taken having regard to the situation in Ukraine — Act prohibiting all EU operators from certain types of financial transactions with entities established outside the EU which are more than 50% owned by an entity included in the list of entities covered by restrictive measures — Action brought by an entity more than 50% owned by an entity included in those lists — Admissibility

(Art. 263, 4th para. TFEU; Council Decision 2014/512/CFSP, Art. 1(1)(b) and Annex I; Council Regulation No 833/2014, Art. 5(1)(b) and Annex III)

(see paras 47-50, 52)
Fundamental rights — Charter of Fundamental Rights of the European Union — Principle that offences and penalties must have a proper legal basis — Scope — Foreseeability of the infringing nature of the penalised conduct — Patent dispute settlement agreement between an originator company and a generic undertaking — Agreement contrary to competition law — Originator company which could not have been unaware of the anti-competitive nature of its conduct

(Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49(1))

(see paras 272-287)
1

Article 102 of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1) provides: ‘1. Member States shall provide the Commission with any relevant information as that may request on the implementation of this Regulation. In submitting a request for information, the Commission shall specify a reasonable time limit within which the information is to be supplied. 2. If the Commission considers that irregularities have occurred in the implementation of the rules of the common fisheries policy or that the existing control provisions and methods in particular Member States are not effective it shall inform the Member States concerned, which shall then conduct an administrative inquiry in which Commission officials may participate. 3. The Member States concerned shall inform the Commission of the results of the inquiry and forward a report to the Commission drawn up not more than three months after the Commission’s request. This period may be extended by the Commission, on a duly reasoned request from the Member State, for a reasonable delay. 4. If the administrative inquiry referred to in paragraph 2 does not lead to the removal of the irregularities or if the Commission identifies shortcomings in the control system of a Member State during the verifications or autonomous inspections referred to in Articles 98 and 99 or in the audit referred to in Article 100, the Commission shall establish an action plan with that Member State. The Member State shall take all necessary measures to implement that action plan.’
32

The general rules on limitation are set out in the French Civil Code. These general rules were amended by Law No 2008-561 of 17 June 2008 reforming limitation in civil matters (‘Law No 2008-561’), which came into force on 19 June 2008. Prior to that reform, the general limitation period in civil matters was 30 years, on the basis of the former Article 2262 of the Civil Code. Following the reform, under Article 2224 of the Civil Code, personal or property actions lapse five years from the day the holder of a right knew or should have known the facts enabling him to exercise his right. Article 2241 of the Civil Code provides that the commencement of legal proceedings, even if for interim relief, interrupts the limitation period. This is the case even where proceedings are brought before the wrong court or where the claim document is void for a procedural defect. Under Article 2242 of the Civil Code, the interruption resulting from the commencement of proceedings continues until those proceedings are terminated. Finally, Article 2231 of the Civil Code provides that interruption erases the period of limitation acquired to date and starts a new period of the same length as the previous one. Meanwhile, Articles 1 and 2 of Law No 68-1250, the application of which is invoked by the applicant as a lex specialis, provide for a limitation period of four years from the first day of the year following that during which the rights were acquired. That period is interrupted by any proceedings commenced before a court even if that court has no jurisdiction to hear them. In such a case, a new period starts to run on the first day of the year following that during which the judgment acquired the authority of a final decision.
10

The applicants submit that the Commission applied the legal criterion set out in Article 4(2)(b) of Regulation No 211/2011 incorrectly. More specifically, they contend that, when the Commission interprets and applies that condition for registration of proposed ECIs, it cannot, in the light of the regulation’s objectives and spirit, conduct an overly strict review, because the assessment carried out at the stage of registration of proposed ECIs should simply enable it to ascertain whether the gist of the initiative concerns subject matter on which the citizens’ committee and the institutions can exchange views. First of all, an overly strict assessment of that condition would be contrary to the objective of the ECI mechanism, which is to increase the democratic participation of citizens. Next, the applicants contend that application of Article 4(2)(b) of Regulation No 211/2011 requires the Commission to take account of the status of persons instigating proposed ECIs, in the sense that committee members are not fully aware of the inner workings of the European Union and their specific features. Finally, the applicants submit that, given the presence of the adverb ‘manifestly’ in Article 4(2)(b) of Regulation No 211/2011, registration of a proposed ECI is to be refused only if a proposal manifestly falls outside the framework of the Commission’s powers and while taking into consideration the fact that the correctness and appropriateness of the choice of legal basis are often the subject of much debate.
Judgment of the General Court (Third Chamber) of 10 November 2015 —

GSA and SGI v Parliament

(Case T‑321/15)

‛Public service contracts — Tendering procedure — Supply of fire security, assistance to persons and external surveillance at the European Parliament’s site — Rejection of a tenderer’s bid — Obligation to produce prior authorisation issued pursuant to national legislation — Proportionality — Equal Treatment — Principle of openness — Freedom to provide services’

1. European Union public contracts — Tender procedure — Obligation to comply with the principle of equal treatment of tenderers — Need to ensure the widest possible competition (European Parliament and Council Regulation No 966/2012, Art. 102(1) and (2)) (see paras 30, 57, 58)

2. European Union law — Principles — Proportionality — Scope (see para. 32)

3. European Union public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (European Parliament and Council Regulation No 966/2012; Commission Regulation No 1268/2012) (see para. 33)

4. European Union public contracts — Conclusion of a contract following a call for tenders — Criteria for selecting candidates — Criterion concerning the production of a security authorisation issued by the competent national authority in the context of a tendering procedure concerning the supply of fire security, assistance and surveillance services at the site of an EU institution — Lawfulness (European Parliament and Council Regulation No 966/2012, Art. 102(1); Commission Regulation No 1268/2012, Art. 146(3)) (see paras 37-40, 60)

5. Freedom to provide services — Restrictions — Procedures for the award of public service contracts — Supply of fire security, assistance and surveillance services at the site of an EU institution — Contracting authority requiring tenderers to hold a security authorisation issued by the competent national authority — Lawfulness (Art. 56 TFEU) (see paras 66, 67, 70)

Re:

APPLICATION for annulment of the Parliament’s decisions, contained in the letter of 12 June 2015, by which the Parliament informed the applicants, first, of the rejection of the tender submitted by them in respect of the open tendering procedure EP/DGSAFE/UIB/SER/2014-014 for the provision of fire security, assistance to persons (part 1) and external surveillance (part 2) at the European Parliament’s site in Brussels (OJ 2014/S 246-433095) and, secondly, that the relevant contract had been awarded to another company.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 23 February 2016 —

Pirelli Tyre v OHIM (Tyre treads and Others)

(Joined Cases T‑279/15 to T‑282/15)

‛Community design — Community design representing tyre treads and pneumatic tyres for vehicle wheels — Failure to apply for renewal of the design and cancellation of the design upon expiry of the registration — Application for restitutio in integrum and application for renewal of the design’

1. Community designs — 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 6/2002, Art. 61(1)) (see para. 11)

2. Community designs — Procedural provisions — Restitutio in integrum — Conditions — Due care required by the circumstances — Delegation of administrative tasks relating to renewal of a design (Council Regulation No 6/2002, Art. 67(1)) (see paras 15, 17, 18, 20)

Re:

Four actions brought against the decisions of the Third Board of Appeal of OHIM of 8 January 2015 (Cases R 1285/2014-3 and R 1286/2014-3) and of 11 February 2015 (Cases R 1287/2014-3 and R 1288/2014-3) relating to applications for restitutio in integrum.

Operative part

The Court:

1. Dismisses the actions;
Judgment of the General Court (Second Chamber) of 24 November 2015 —

Intervog v OHIM (meet me)

(Case T‑190/15)

‛Community trade mark — Application for Community figurative mark meet me — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14-16)

2. Community trade mark — Definition and acquisition of the Community 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 — Inadmissibility (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 17-20, 26)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark meet me (Council Regulation No 207/2009, Art. 7(1)(b) and (2)) (see paras 23, 37)

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 — Likelihood of association — Earlier marks having characteristics allowing them to be regarded as forming part of the same ‘series’ or ‘family’ — Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34, 35)

5. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (see paras 39-42)

6. Community 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 46-48)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 11 February 2015 (Case R 845/2014-4) concerning an application for registration of the sign meet me as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;