ddrg/super_eurlex huggingface dataset:
48

As a preliminary point, it should be recalled that in its judgment of 14 November 2013, SFIR and Others (C‑187/12 to C‑189/12, EU:C:2013:737), after finding that the concept of ‘production facilities’ was not defined by Regulations No 320/2006 and No 968/2006, the Court, first of all, pointed out that the concept of ‘production’ could also encompass other steps in the production of a product upstream or downstream of the chemical or physical transformation process and could therefore include the storage of sugar which is not packed immediately after its extraction from the raw material. It thus concluded that storage could be ‘directly related to the production of sugar’ within the meaning of Article 4(1)(b) of Regulation No 968/2006 (judgment of 14 November 2013, SFIR and Others, C‑187/12 to C‑189/12, EU:C:2013:737, paragraph 26). Secondly, the Court found that silos were capable of having a direct impact on the quantities of sugar which may be produced and on the production process, which were dependent on the proximity of a storage facility, in so far as they enabled, in particular, the sale of what is produced in a given sugar marketing year to be partially or totally deferred and, accordingly, influenced the market situation within the meaning of recital 5 of Regulation No 320/2006 (judgment of 14 November 2013, SFIR and Others, C‑187/12 to C‑189/12, EU:C:2013:737, paragraphs 27 to 29). Thirdly, the Court took the view, in essence, that it followed from Article 3(3)(a) and (b) of Regulation No 320/2006 that, in principle, in order to be eligible for restructuring aid for full dismantling, the industrial complex concerned had to be put out of operation in its entirety and that the option to refrain from dismantling or to continue using in the future the facilities other than production facilities, while retaining the right to the full amount of aid, constituted an exception which had to be interpreted narrowly (judgment of 14 November 2013, SFIR and Others, C‑187/12 to C‑189/12, EU:C:2013:737, paragraph 30).
EU trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of EUIPO — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal

(Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third subpara.)

(see paras 46, 47, 49)
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—Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 19, 20)
Judgment of the General Court (Eighth Chamber) of 5 May 2017 —

PayPal v EUIPO — Hub Culture (VENMO)

(Case T‑132/16)

(EU trade mark — Invalidity proceedings — EU word mark VENMO — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009)

EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Criteria for assessment — Taking into account of all relevant factors at the time of filing the application for registration — Applicant’s knowledge that a third party is using an identical or similar sign — Intention of the applicant — Degree of legal protection of the signs at issue

(Council Regulation No 207/2009, Art. 52(1)(b))

(see paras 32-45, 64, 67-69)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 12 January 2016 (Case R 2974/2014-5), relating to invalidity proceedings between PayPal and Hub Culture.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 January 2016 (Case R 2974/2014-5);

2. Orders EUIPO to pay, in addition to its own costs, those incurred by PayPal, Inc.;
Case T‑580/16

Irit Azoulay and Others

v

European Parliament

(Civil service — Officials — Members of the temporary staff — Remuneration — Family allowances — Education allowance — Refusal to reimburse education costs — Article 3(1) of Annex VII to the Staff Regulations — Legitimate expectations — Equal treatment — Principle of sound administration)

Summary — Judgment of the General Court (Eighth Chamber), 28 April 2017

Officials–Remuneration–Family allowances–Education allowance–Education costs–Definition–Contributions paid to non-profit associations for the participation of children in a specific programme and non-subsidised education–Not included

(Staff Regulations, Annex VII, Art. 3(1))

It is apparent from Article 3(1) of Annex VII to the Staff Regulations that the concept of ‘education costs’ concerns costs connected with the regular full-time attendance by an official’s dependent child at ‘a primary or secondary school which charges fees’.

According to Article 3 of the General Implementing Provisions (GIPs) concerning the granting of the education allowance provided for by Article 3 of Annex VII to the Staff Regulations, adopted by the European Parliament, education costs include ‘registration and attendance fees at educational establishments’. Thus worded, education costs cover both fees enabling a pupil to access an educational establishment (registration fees) and fees enabling him to attend classes and participate properly in the programmes provided by that establishment (attendance fees).

The concept of ‘education costs’ is an autonomous concept of EU law and that, accordingly, national descriptions or classifications relating to school fees are not decisive in that regard. It also follows that the description or classification of the contributions made by the parents to the non-profit associations concerned in no way alters the fact that the educational establishments in question do not require registration or attendance fees. It necessarily follows that the contributions required by those non-profit associations for the participation of children in the specific programme and non-subsidised education provided by those schools cannot constitute fees for registration and attendance at those schools.

In that regard, Article 3 of the GIPs differentiates ‘all other costs’, in respect of which no reimbursement is permitted. That expression concerns not only ‘extra-curricular’ costs but also ‘other expenses connected with following the curriculum of the educational establishment attended’.

It follows that, as the contributions made to the non-profit associations concerned cannot be classified as education costs, they constitute costs arising from requirements and activities connected with following the curriculum, namely the participation of children in the specific programme and non-subsidised education provided by the schools in question, and must be regarded as ‘other expenses connected with following the curriculum of the educational establishment attended’ for the purposes of the said Article 3 of the GIPs, which, according to that provision, are not covered by the education allowance.

(see paras 20, 30, 36, 38, 40)
Agriculture — EAGGF, EAGF and EAFRD financing — Grant of aid and premiums — Obligation of the Member States — Adoption of measures for ensuring the regularity of expenses — Scope

(European Parliament and Council Regulation No 1306/2013, Arts 4 and 58(1); Council Regulation No 1290/2005, Arts 3 and 9(1))

(see para. 48)
Where the mark applied for or registered consists in a two-dimensional or three-dimensional representation of the product that it covers, its distinctive character depends on whether it departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating the origin of the product.

That is also the case where the mark consists of a part of the shape of the product that it represents, inasmuch as the relevant public will immediately and without further thought perceive it as a representation of a detail or an aspect of the product in question. In such a situation, the decisive element is not the categorisation of the sign in question as a figurative sign, be it three-dimensional or otherwise, but rather the fact that it is indissociable from the appearance of the product designated.

If, in such a case, the assessment of the distinctive character of the mark were not carried out by reference to the extent to which it departs from the norms or customs of the sector of the goods concerned, it would be enough to request the registration of a sign immediately perceivable as a part of the product covered in order to increase the possibility of that mark being registered and thus giving, nearly automatically, protection to the appearance or shape of the product itself. Since the average consumer is not in the habit of making assumptions about the origin of products on the basis of their appearance or shape, that possibility presents a significant risk of circumventing Article 7(1)(b) of Regulation No 207/2009 on the EU trade mark and would therefore undermine the public interest safeguarded by that provision.

As regards marks consisting of the shape of the product that they cover, the competent authority may identify their essential characteristics by examining the product itself. Such an examination must be carried out where the identification of an essential characteristic of the mark is necessary in order to determine the specific nature of the elements that form part of the graphic representation and any descriptions filed at the time of application for registration, and thus safeguard the public interest underlying Article 7(1)(e)(ii) of Regulation No 207/2009. That interest consists in ensuring that an economic operator cannot improperly appropriate for itself a sign consisting of the shape of the product and incorporating a technical solution. That problem arises, by definition, in a case involving a mark consisting of the shape of an actual product and not of an abstract shape.

(see paras 37-40)
Judgment of the General Court (Third Chamber) of 14 March 2017 — Wessel-Werk v EUIPO — Wolf PVG (Suction nozzles for vacuum cleaners)

(Case T‑174/16)

(Community design — Proceedings for a declaration of invalidity — Registered Community design representing a suction nozzle for a vacuum cleaner — Earlier Community design — Ground for invalidity — Individual character — Informed user — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002)

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 — Informed user — Concept (Council Regulation No 6/2002, Arts 6(1), and 25(1)(b)) (see paras 19, 24, 25)

2. 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 — Global assessment of all the elements of the prior design (Council Regulation No 6/2002, Arts 6(1), and 25(1)(b)) (see para. 26)

3. 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 — Representation of a suction nozzle for vacuum cleaners (Council Regulation No 6/2002, Arts 6(1), and 25(1)(b)) (see paras 29-31)

Re:

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 18 February 2016 (Case R 1652/2014-3), as rectified, relating to proceedings for a declaration of invalidity between Wolf PVG and Wessel-Werk.

Operative part

The Court:

1. Dismisses the action;
Case T‑235/16

(publication by extracts)

GP Joule PV GmbH & Co. KG

v

European Union Intellectual Property Office

(EU trade mark — Opposition proceedings — Application for the EU figurative trade mark GPTech — Earlier EU word marks GP JOULE — Failure to produce before the Opposition Division proof of entitlement to file a notice of opposition — Proof first produced before the Board of Appeal — Failure to take into account — Discretion of the Board of Appeal — Circumstances precluding additional or supplementary evidence from being taken into account — Article 76(2) of Regulation (EC) No 207/2009 — Rules 17(4), 19(2), 20(1) and 50(1) of Regulation (EC) No 2868/95)

Summary — Judgment of the General Court (Seventh Chamber), 21 June 2017

EU trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of EUIPO — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal — Facts precluding new or additional evidence being taken into account

(Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 50(1), third subpara.)

When examining an appeal directed against a decision of an Opposition Division, the Board of Appeal of European Union Intellectual Property Office has a discretion deriving from the third subparagraph of Rule 50(1) of Regulation No 2868/95 implementing Council Regulation No 40/94 on the Community trade mark and from Article 76(2) of Regulation No 207/2009 on the Community trade mark to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time limits set or specified by the Opposition Division. With regard to proof of use of a mark, when no proof thereof is submitted within the time limit set by EUIPO, the opposition must automatically be rejected by EUIPO. However, when evidence is produced within the time limit set by EUIPO, the production of supplementary evidence remains possible.

In that regard, where an applicant presents no proof of its entitlement to file a notice of opposition within the time limit set by EUIPO, such proof, submitted for the first time before the Board of Appeal, cannot be characterised as ‘additional’ or ‘supplementary’ evidence within the meaning of the third subparagraph of Rule 50(1) of Regulation No 2868/95 and Article 76(2) of Regulation No 207/2009.

(see paras 41, 43, 46, 49)
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. 44)
Judgment of the General Court (Seventh Chamber) of 8 September 2017 — Gillet v Commission

(Case T‑578/16)

(Civil service — Contract staff — Former employed worker under Belgian law — Allowance applicable pursuant to Articles 6 and 7 of Decision C(2005) 1287 — Recalculation of the amount of the allowance by the administration in the context of an update of management procedures — Act adversely affecting an official or other member of staff — Act which is merely confirmatory — Obligation to state reasons — Recovery of sums overpaid)

1. Actions brought by officials — Acts adversely affecting an official — Concept — Salary statement — Inclusion normally allowed for the purpose of exercising right of action — Pay slip merely affirming an earlier administrative decision — Not included (Staff Regulations, Arts 90(2), and 91(3)) (see paras 27-29, 36)

2. Actions brought by officials — Prior administrative complaint — Time-limits — Claim barred by lapse of time — Excusable error — Concept (Staff Regulations, Arts 90(2), and 91(2)) (see paras 38, 39)

3. Actions brought by officials — Time-limits — Point from which time starts to run — Notification — Lack of an insufficient reasoning for a duly notified decision — Irrelevant (Staff Regulations, Arts 90 and 91) (see para. 49)

4. EU law — Principles — Principle of sound administration — Obligation to state reasons for decisions adversely affecting an official (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41) (see paras 56-59, 69)

5. Officials — Members of the contract staff — Remuneration — Compensation for lowering of renumeration of staff previously employed under staff regulations of national law — Account taken of the promotion of the person concerned in calculating the amount of his compensation — Breach of the principle of equal treatment (Conditions of Employment of Other Servants of the European Communities, Annex, Art. 2(2)) (see paras 85-88)

6. Officials — Conditions of Employment of Other Servants of the European Communities — Equal treatment — Application of a transitional regime — Account taken of the personal situation of each person concerned at the precise moment of change of the staff regulations (see paras 89, 90)

7. Officials — Recovery of undue payments — Conditions — Patent overpayment — Criteria (Staff Regulations, Art. 85) (see paras 96-100)

Re:

APPLICATION based on Article 270 TFEU and seeking the annulment of the Commission’s decisions of 12 December 2014 and of 9 April 2015 and subsequent salary statements that reduce the amount of the allowance paid to the applicant, who was employed under an employment contract of indeterminate duration governed by Belgian law, and that require the repayment of amounts overpaid.

Operative part

The Court:

1. Annuls the European Commission’s decision of 9 April 2015 in so far as it seeks to recover the amount of EUR 3 959.38 under Article 85 of the Staff Regulations of Officials of the European Union and Article 116 of the Conditions of Employment of Other Servants of the European Union;

2. Dismisses the remainder of the action;

3. Orders Ms Évelyne Gillet to bear her own costs;
Judgment of the General Court (Second Chamber) of 15 September 2017 —

sheepworld v EUIPO (Bester Papa)

(Case T‑451/16)

(EU trade mark — Application for EU word mark Bester Papa — 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—Concept—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 19, 20)

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 21-23)

3. 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—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 24, 26)

4. 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—Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 25)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Word mark Bester Papa (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 28-32)

6. 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 (see para. 46)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 26 May 2016 (Case R 94/2016-4) concerning an application for registration of the word sign Bester Papa as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope

(Council Regulation No 207/2009, Arts 7(1) and 75, first sentence)

(see para. 56)
EU trade mark–Observations of third parties and opposition–Examination of the opposition–Proof of use of the earlier mark–Genuine use–Meaning–Criteria for assessment

(Council Regulation No 207/2009, Arts 15(1), and 42(2); Commission Regulation No 2868/95, Art. 1, Rule 22(6))

(see paras 47, 51, 52)
Judgment of the General Court (Second Chamber) of 6 October 2017 – Karelia v EUIPO (KARELIA)

(Case T-878/16)

(EU trade mark — Application for the EU word mark ‘KARELIA’ — Absolute ground for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001))

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 para 14)

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–Geographical names (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 15-19, 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–Word mark KARELIA (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 28, 31, 35, 38, 39)

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–Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 33, 34)

Application for

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 19 September 2016 (Case R 1562/2015-5), relating to an application for registration of the word sign ‘KARELIA’ as an EU trade mark.

Operative part

The Court:

1. Dismisses the action.
As regards recourse to a flat-rate financial correction in relation to the irregularities referred to in Articles 32 and 33 of Regulation No 1290/2005 on the financing of the common agricultural policy, no provision of that regulation, and Articles 31 to 33 of that regulation in particular, excludes the possibility of applying Article 31(2) of that regulation to the irregularities referred to in Articles 32 and 33 thereof.

In that regard, the fact that Articles 32 and 33 of Regulation No 1290/2005 expressly refer solely to Article 31(3) of that regulation does not mean that recourse to a flat-rate financial correction is excluded in the case of the irregularities referred to in Articles 32 and 33. Indeed, it is apparent from the wording of Article 31(5)(a) of Regulation No 1290/2005 that Article 31(4) of that regulation shall not apply to the financial consequences of the irregularities covered by Articles 32 and 33, which implies, a contrario, that the other paragraphs of Article 31 of Regulation No 1290/2005, including Article 31(2), are intended to apply to the irregularities covered by Articles 32 and 33 of that regulation. Moreover, nothing in the Guidelines defined in Commission document VI/5330/97 excludes the application of Article 31(2) of Regulation No 1290/2005 to the financial consequences of the irregularities referred to in Articles 32 and 33 of that regulation.

(see paras 29, 31, 32, 39)
Competition—Division of jurisdiction between the Court of Justice and national competition authorities—Commission’s right to reject a complaint concerning a case being dealt with by a national competition authority—Discretion of the Commission—Judicial review—Scope

(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, 18th recital and Art. 13(1))

(see paras 23-25)