ddrg/super_eurlex huggingface dataset:
Keywords

Summary



Keywords

1. Community trade mark - Definition and acquisition of the Community trade mark - Absolute grounds for refusal - Signs devoid of any distinctive character - Three-dimensional marks - Assessment criteria as compared with other categories of mark

(Council Regulation No 40/94, Art. 7(1)(b))

2. Community trade mark - Definition and acquisition of the Community trade mark - Absolute grounds for refusal - Signs devoid of any distinctive character - Three-dimensional marks - Cylindrical torch shapes

(Council Regulation No 40/94, Art. 7(1)(b))

Summary

1. Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, under which marks which are devoid of any distinctive character are to be refused registration, draws no distinction between different categories of mark. Accordingly, it is not appropriate to apply more stringent criteria or impose stricter requirements when assessing the distinctiveness of three-dimensional marks comprising the shape of the goods themselves than are applied or imposed in the case of other categories of mark. In order to assess a mark's distinctiveness, it is necessary to take account of all relevant elements linked to the specific circumstances of the case and one such element is the fact that it cannot be excluded that the nature of the mark in respect of which registration is sought might influence the perception which the targeted public will have of the mark.

The distinctiveness requirements applicable to three-dimensional marks comprising the shape of the goods cannot be less strict than those applicable to word marks, since consumers are more accustomed to directing their attention to the latter.

( see paras 32-33, 38 )

2. The three-dimensional marks consisting of cylindrical torch shapes in respect of which registration was sought for apparatus for lighting and accessories for such apparatus are devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since a cylinder is a common shape for a torch which corresponds to shapes commonly used by other torch manufacturers on the market and thus, rather than enabling the product to be differentiated and linked to a specific commercial source, gives the consumer an indication as to the nature of the product. Moreover, the aesthetic qualities and the unusually original design of the shapes claimed as marks appear, as a result of those features, as variants of a common torch shape rather than as shapes capable of differentiating the goods and indicating, on their own, a given commercial origin.

( see paras 36-37, 42 )
Case T-360/00

Dart Industries Inc.

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community trade mark — ‘UltraPlus’ — Absolute grounds for refusal — Descriptive character, distinctive character — Article 7(1 )(b) and (c) of Regulation (EC) No 40/94’

Judgment of the Court of First Instance (Second Chamber), 9 October 2002 II-3870

Summary of the Judgment

Article 7( 1 ) (c) of Regulation No 40/94 on the Community trade mark provides that ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ are not to be registered. As regards the registration of ‘UltraPlus’ sought in respect of plastic ovenware for use in microwave, convection and conventional ovens, it has not been shown that that sign may serve to designate those goods directly, since the word ‘ultra’ does not designate a quality, quantity or characteristic of the ovenware which the consumer is able to understand directly, that word, as such, being capable only of reinforcing the designation of a quality or characteristic by another word, and since the word ‘plus’ does not in itself designate a quality or characteristic of the plastic ovenware concerned which the consumer is able to understand directly and which could be reinforced by the word ‘ultra’, with the result that the relevant public would not immediately and without further reflection make a definite and direct association between plastic ovenware and ‘UltraPlus’. When an undertaking extols, indirectly and in an abstract manner, the excellence of its products by way of a sign such as ‘UltraPlus’, yet without directly and immediately informing the consumer of one of the qualities or specific characteristics of the ovenware, it is a case of evocation and not designation for the purposes of the abovementioned provision. (see paras 25-27, 29)

The fact that a sign is not descriptive within the meaning of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark does not automatically mean that it is distinctive within the meaning of Article 7(1 )(b). Distinctive character may also be lacking if the relevant public cannot perceive in that sign an indication of the commercial origin of the goods. (see para. 30)
Case T-183/00

Strabag Benelux NV

v

Council of the European Union

‛Public works contracts — Nonexistence of the contested decision — Statement of reasons of the award decision — Award criteria — Action for annulment — Non-contractual liability of the Community’

Judgment of the Court of First Instance (Fifth Chamber), 25 February 2003 II- 138

Summary of the Judgment

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to reject a tender under the procedure for the award of a public works contract — Assessment on the basis of the information available to the applicant at the time the application was brought

According to Article 8(1) of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, which, by virtue of Article 56 of the Financial Regulation, is applicable to contracts awarded by the Community institutions where the value of the contract exceeds the threshold laid down in that directive, an institution fulfils its obligation to provide eliminated tenderers with a statement of reasons if it first informs them immediately of the fact that their tender has been rejected by a simple unreasoned communication and then subsequently, if expressly requested to do so, informs them of the relative characteristics and advantages of the successful tender and the name of the successful tenderer within 15 days of receipt of a written request. Such a manner of proceeding satisfies the purpose of the duty to state reasons enshrined in Article 253 EC, according to which the reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its power of review. The adequacy of a statement of reasons is not called into question by the fact that the institution subsequently provided a more detailed explanation. (see paras 54-55, 57)

Compliance with the duty to state reasons laid down in Article 253 EC must be assessed in the light of the information available to the applicant at the time the application was brought. If, in the context of Directive 93/37 concerning the coordination of procedures for the award of public works contracts, the eliminated tenderer, before bringing an action but after the date laid down by Article 8(1) of that directive, asks the institution concerned for additional explanations about a decision to reject its tender and receives those explanations, it cannot ask the Court not to take them into consideration when determining whether the statement of reasons is adequate; however, the institution is not permitted to substitute an entirely new statement of reasons for the original statement of reasons. (see para. 58)
The requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the person concerned with sufficient details to allow him to ascertain whether or not the decision is well founded and make it possible for the decision to be the subject of judicial review. As far as concerns decisions taken by a selection board in a competition, the obligation to state reasons must nevertheless be reconciled with observance of the secrecy surrounding the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. That secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures, whether these come from the Community administration itself or the candidates concerned or third parties. Observance of this secrecy therefore precludes both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates.

That being so, the obligation to state the reasons on which decisions of a selection board in a competition are based must take account of the nature of the proceedings concerned, which involve as a rule at least two separate stages, the first being an examination of the applications in order to select the candidates admitted to the competition, and the second being an examination of the abilities of the candidates for the posts to be filled in order to draw up a list of suitable candidates. The second stage of the selection board's proceedings involves tasks that are primarily comparative in character and is accordingly covered by the secrecy inherent in those proceedings. The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates' respective merits. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments. The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based, since the board is not required to identify the applicants' answers which were considered unsatisfactory or to explain why they were considered unsatisfactory.

(see paras 43-50, 52)

See: 44/71 Marcato v Commission [1972] ECR 427, paras 19 and 20; 37/72 Marcato v Commission [1973] ECR 361, paras 18 and 19; 31/75 Costacurta v Commission [1975] ECR 1563, paras 10 and 11; 89/79 Bonu v Council [1980] ECR 553, para. 5; 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paras 24 to 26, 28 to 30 and 31; T-291/94 Pimley-Smith v Commission [1995] ECRSC I-A-209 and II-637, paras 63 and 64
The Commission is not entitled to require the recovery of unlawful State aid from the recipient where, at the time of adopting a decision to that effect, the Commission knew — or could not but have known — that the aid had not benefited that undertaking.

In that regard, a decision ordering the recovery of unlawful State aid from the undertaking addressed does not comply with the principles governing the recovery of unlawful State aid where the Commission had at its disposal, at least when adopting that decision, a body of valid and consistent evidence showing that the addressee undertaking did not actually benefit from a large proportion of that aid, owing to its diversion, and making it possible to determine, at least approximately, the scale of the diversion. The Commission cannot, in order to justify its decision, take refuge behind the fact that the authorities of the Member State concerned did not provide it with precise information in respect of the part of the aid that was diverted where it failed to make use of the powers at its disposal to require that information to be passed to it.

(see paras 90-92)
Case T-342/00





Petrolessence SA and Société de gestion de restauration routière SA (SG2R)

v

Commission of the European Communities





«(Competition – Regulation (EEC) No 4064/89 – Decision declaring a merger compatible with the common market – Petroleum sector – Commitments – Decision refusing approval of transferees – Inadmissibility – Definitive binding act – Infringement of essential procedural requirements – Procedural time-limits for reply – Error of assessment)»

Judgment of the Court of First Instance (Fifth Chamber), 3 April 2003

Summary of the Judgment

1.. Actions for annulment – Actionable measures – Measures producing binding legal effects – Assessment in the light of the substance of the measure – Merger between two undertakings approved by the Commission on condition that assets be transferred to third parties to be approved by it – Right of candidate transferee to bring an action against the refusal by the Commission to approve him

(Art. 230 EC)

2.. Competition – Concentrations between undertakings – Investigation by the Commission – Assessments of an economic nature – Discretion – Judicial review – Limits

(Council Regulation No 4064/89, Art. 2)

1.

2.
Case T-305/00





Conserve Italia Soc. coop. rl

v

Commission of the European Communities





«(Agriculture – EAGGF – Discontinuance of financial aid – Statement of reasons – Error of assessment as to the facts – Article 24 of Regulation (EEC) No 4253/88 – Principle of proportionality)»

Judgment of the Court of First Instance (Fifth Chamber), 11 December 2003

Summary of the Judgment

1.. Agriculture – Common agricultural policy – Structural reform – Common measures – Improvement of the conditions under which agricultural products are processed and marketed – Obligation on the beneficiary to carry out an EAGGF-financed operation correctly – Main line financed idle for over two years – Breach – Temporary constraints not relevant

(Council Regulation No 355/77, Arts 9(1) and 10(c))

2.. Agriculture – Common agricultural policy – Structural reform – Common measures – Improvement of the conditions under which agricultural products are processed and marketed – Examination of projects for the improvement or rationalisation of the processing and marketing of those products – Exclusive competence of the Commission

(Council Regulations Nos 355/77, Arts 1(3), 3 and 9, and 4253/88, Art. 14(3))

3.. Economic and social cohesion – Structural assistance – Community financing – Withdrawal of financial assistance from the EAGGF on account of irregularities – Whether permissible

(Council Regulation No 4253/88, Art. 24(2))

4.. Agriculture – Common agricultural policy – Structural reform – Common measures – Improvement of the conditions under which agricultural products are processed and marketed – EAGGF financial assistance discontinued for breach of fundamental obligations – Proportionality

(Art. 5, third para., EC; Council Regulation No 355/77, Art. 10(c))

1.

2.

3.

4.
Case T-223/00





Kyowa Hakko Kogyo Co. Ltd and Kyowa Hakko Europe GmbH

v

Commission of the European Communities





«(Competition – Cartel – Lysine – Guidelines on the method of setting fines – Applicability – Gravity of the infringement – Turnover – Concurrent sanctions)»

Judgment of the Court of First Instance (Fourth Chamber), 9 July 2003

Summary of the Judgment

1.. Community law – Principles – Protection of legitimate expectations – Conditions – Protection against exercise by the Commission of its power to raise the level of fines penalising infringements of the competition rules – None

(Council Regulation No 17)

2.. Competition – Fines – Amount – Determination thereof – Guidelines adopted by the Commission – Obligation on the Commission to comply with them

(Council Regulation No 17, Art. 15(2))

3.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Taking into account of the total turnover of the undertaking concerned and the turnover achieved by sales of goods which were the subject-matter of the infringement – Limits

(Council Regulation No 17, Art. 15(2))

4.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the effective capacity to cause damage on the relevant market – Relevance of the market share held by the undertaking concerned

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

5.. Competition – Fines – Amount – Determination thereof – Criteria – Seriousness of the infringements – Measure of the actual impact on competition of the infringing conduct of each undertaking – Relevance of the turnover achieved with the products forming the subject-matter of a restrictive practice

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

6.. Competition – Fines – Amount – Community penalties and penalties imposed by the authorities of a Member State or a non-member State for infringement of national competition law – Infringement of thenon bis in idemprinciple – None – Concurrent sanctions – Permissible – Obligation on the Commission to take account, when determining the amount of the fine, of the penalty imposed by a Member State on the basis of the same facts – Obligation not transposable to the hypothesis of a penalty imposed in a non-member State

(Protocol No 7 to the European Convention on Human Rights, Art. 4; Council Regulation No 17, Art. 15)

1.

2.

3.

4.

5.

6.
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

12 June 2002

Cases T-9/01

Michael Becker

v

Court of Auditors of the European Communities

‛Officials — Leave on personal grounds — Invalidity pension’

Full text in German II-379

Application for:

annulment of the decision of the Court of Auditors of 13 November 2000 rejecting a request to be retired on grounds of invalidity.

Held:

The application is dismissed. The parties are ordered to bear their own costs.

Summary

Officials — Invalidity pension — Initiation of the invalidity procedure — Conditions — Official taking leave on personal grounds without acquiring pension rights — Exclusion

(Staff Regulations, Arts 40(3), second para., and 78; Annex VIII, Art. 13)

Under Article 13 of Annex VIII to the Staff Regulations read in conjunction with the second sentence of the second paragraph of Article 40(3) of the Staff Regulations, the procedure for being retired on grounds of invalidity may not be initiated during an official's leave on personal grounds unless he was acquiring pension rights in accordance with the second sentence of the second paragraph of Article 40(3) of the Staff Regulations.

(see para. 24)
Keywords

Summary



Keywords

1. Community trade mark - Definition and acquisition of the Community trade mark - Absolute grounds for refusal - Marks devoid of any distinctive character - Kit Pro' and Kit Super Pro'

(Council Regulation No 40/94, Art. 7(1)(b))

2. Community trade mark - Definition and acquisition of the Community trade mark - Absolute grounds for refusal - Marks devoid of any distinctive character - Examination in the case of a compound mark

(Council Regulation No 40/94, Art. 7(1)(b))

3. Community trade mark - Decisions of the Office - Legality - Examination by the Community judicature - Criteria

(Council Regulation No 40/94)

Summary

$$1. Under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, trade marks which are devoid of any distinctive character' are not to be registered. As regards the registration of Kit Pro' and Kit Super Pro', applied for in respect of parts for repairing drum brakes in land vehicles, those combinations of words are devoid of any distinctive character in relation to those goods.

Each of the trade marks applied for consists of a combination of components, each of which is devoid of distinctive character as regards those goods and there does not appear to be any concrete evidence to show that the marks, considered as a whole, are greater than the sum of their parts.

( see paras 18, 28, 30-31 )

2. In the context of the examination of the absolute ground for refusal referred to in Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, and in respect of a trade mark made up of several components (a compound mark), for the purposes of assessing its distinctive character, it is appropriate to consider the mark as a whole. However, that is not incompatible with an examination of each of the mark's individual components in turn.

The fact that a compound trade mark consists only of components devoid of distinctive character as regards the goods or services concerned is evidence which generally justifies the conclusion that that trade mark, considered as a whole, is also devoid of distinctive character in relation to those goods or services. Such a conclusion can be dismissed only if concrete evidence, such as, for example, the way in which the various components are combined, indicates that the compound trade mark, considered as a whole, is greater than the sum of its parts.

( see paras 22, 29 )

3. Decisions concerning registration of a sign as a Community trade mark which the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) are called on to take under Regulation No 40/94 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Therefore, the registrability of a sign as a Community trade mark must be assessed solely on the basis of that regulation, as interpreted by the Community judicature, and not on the basis of a previous practice of the Boards of Appeal.

( see para. 32 )
JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

24 September 2002

Case T-102/01

Orlando Pérez-Díaz

v

Commission of the European Communities

‛Officials — Recruitment — Selection of temporary staff — Refusal to include on the reserve list — Linguistic abilities of the members of the Selection Committee’

Full text in French II-871

Application for:

annulment of the Selection Committee's decision contained in a letter of 14 July 2000 not to include the applicant on the reserve list of temporary staff resulting from selection procedure COM/R/A/01/1999.

Held:

The Selection Committee's decision contained in the letter of 14 July 2000 not to include the applicant on the reserve list resulting from selection procedure COM/R/A/01/1999 is annulled. The Commission is ordered to pay the costs.

Summary

Officials — Competitions — Selection Board — Composition — Qualification of the members to assess tests objectively — Linguistic abilities

(Staff Regulations, Annex III, Art. 3)

For the composition of a competition Selection Board or Selection Committee to comply with Article 3 of Annex III to the Staff Regulations, the linguistic abilities of its members must enable them to ensure that the knowledge of languages required of the candidates is assessed objectively.

(see para. 32)

See: T-160/96 Svantesson and Others v Council [2001] ECRSC I-A-175 and II-799, para. 32