ddrg/super_eurlex huggingface dataset:
Officials – Reimbursement of expenses – Annual travel expenses – Conditions and procedures – Officials with their place of origin outside the EU – Calculation of travel expenses on the basis of the distance separating their place of employment from the capital of the Member State of which they are a national – Discrimination on grounds of nationality – None – Breach of principle of proportionality – None

(Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Art. 8(2), second subpara.)

(see paras 39-42, 49-56, 58, 61-65)
5

By decision of 6 October 2016 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. First, the Board of Appeal stated in paragraphs 15 and 16 of the contested decision that, given that the mark sought was made up of German words, it was the German-speaking public, or a public with knowledge of the basic vocabulary of German, reasonably well informed and reasonably observant and circumspect, that was involved. Secondly, in paragraphs 17 to 26 of the contested decision, it observed that the term ‘klosterstoff’, which was made up of the words ‘kloster’ and ‘stoff’, referred to goods containing or consisting of alcohol and coming from or produced in a monastery. In its view, the word sign sought was a simple juxtaposition of two terms which, when combined, are descriptive in respect of the goods ‘beer and brewery products; mixed beverages containing beer; preparations for making beverages’ in Class 32 and ‘alcoholic beverages (except beer); spirits and liqueurs, in particular whisky, brandy, piquette; pre-mixed alcoholic beverages, other than beer-based; preparations for making alcoholic beverages’ in Class 33. It thus concluded, in paragraph 26 of the contested decision, that registration of the mark was precluded by the ground for refusal laid down in Article 7(1)(c) of Regulation No 207/2009 in respect of those goods. Thirdly, in paragraphs 27 to 33 of the contested decision, the Board of Appeal found that the mark sought was also devoid of distinctive character within the meaning of Article 7(1)(b) thereof in respect of the same goods, on the ground that it merely conveyed the message that the goods concerned contain alcohol and come from or were produced in a monastery. Consumers were not, therefore, able to identify the commercial origin simply by seeing the sign. Fourthly, the Board of Appeal found, in paragraphs 34 to 37 of the contested decision, that the mark sought was misleading for the purposes of Article 7(1)(g) of the same regulation in that it gives consumers the impression that non-alcoholic beverages contain alcohol and that therefore it could not be registered in that connection for ‘non-alcoholic beverages, in particular non-alcoholic beer’ in Class 32. Fifthly, it found, in paragraphs 38 and 39 of the contested decision, that the fact that various marks containing the component ‘stoff’ had been registered previously was not decisive for determining the lawfulness of the registration of the mark sought.
47

It is necessary to point out, moreover, that, in the cases concerning websites which have given rise to the judgments referred to by EUIPO in its response (judgments of 21 June 2012, Fruit of the Loom v OHIM — Blueshore Management (FRUIT), T‑514/10, not published, EU:T:2012:316, paragraphs 59 to 67; of 21 November 2012, PHOTOS.COM, T‑338/11, not published, EU:T:2012:614, paragraphs 48 to 61; and of 19 November 2014, Out of the blue v OHIM — Dubois and Another (FUNNY BANDS), T‑344/13, not published, EU:T:2014:974, paragraphs 26 to 31), the evidence adduced by the proprietors of the marks or rights concerned, or in fact the context and the circumstances, were very different from that adduced in the present case. In the first of those cases, which concerned revocation proceedings in respect of the EU trade mark FRUIT, the proprietor of that mark had a website with the address ‘www.fruit.com’, but had failed to adduce any evidence that that mark had been put to genuine use, including on the basis of information provided on that website which referred to another mark. The website thus did not fulfil any commercial or even mere advertising function in respect of the goods covered by the mark in question. In the second of those cases, which concerned a refusal to register the EU trade mark PHOTOS.COM, when the applicant sold photographs via a website with the address ‘www.photos.com’, the Board of Appeal and the Court considered that the evidence adduced by that applicant to establish the acquisition, through use, of distinctive character by the mark at issue was insufficient or ineffective from a geographical, quantitative or temporal point of view for the purposes of establishing a link between the use of that site and the identification of the commercial origin of the photographs available and, as the case may be, sold there. The Court, however, stated that the registration of a mark composed of signs or indications which were also used to designate a domain name was not excluded. Finally, in the third case, which concerned opposition proceedings relating to the registration of the EU trade mark FUNNY BANDS on the ground of the previous existence of a non-registered identical trade name used in the internet domain name ‘www.funny-bands.com’, the opponent sought to prove use of that name of more than mere local significance. However, as regards the website at the corresponding address, he only proved that it existed and provided a number of examples of its content, but no evidence that could be used to assess the intensity of its commercial use. In that regard, the Court found that that could have been demonstrated, inter alia, by a certain number of connections to the site, by emails received via the site or by the volume of business generated.
85

In the second place, although the applicant did not expressly choose one of the three options offered to him, he informed Mr M. in his email of 9 February 2015 that, following the incident mentioned in that email, he felt unwell and had therefore gone to see the nurse, who gave him medication. The applicant added that he had felt slightly dizzy, either because of the medication or what he considered to be a form of psychological harassment, and was therefore hardly able to reply to Mr M.’s proposal. He also raised the possibility of the Head of Mission being informed of his problems with Mr X. until he felt well enough to submit a formal complaint. It is apparent from those observations that the applicant considered himself to be the victim of harassment, that he experienced health problems linked to the harassment and that his health was such that he was unable to lodge a formal complaint of harassment at that time. It is self-evident that the Mission was required to take account of that additional information in order to decide on the steps to be taken in response to the applicant’s email of 9 February 2015. In particular, owing to its duty of care, the onus was on the Mission to take account of the fact that, although possible instances of harassment had been identified by a member of its staff, that person was not in a position to lodge a complaint in the prescribed manner at that point in time because of health problems which he claimed were related to the harassment.
54

Lastly, as regards the applicant’s reference to a previous decision of one of the Boards of Appeal of EUIPO, inasmuch as the complaint in question does not relate to the first plea, which was rejected in paragraph 35 above, but to a reliance on the decision-making practice of the Boards of Appeal of EUIPO, it is clear from settled case-law that the decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO are led to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation and not on the basis of a previous decision-making practice. It has been held that, in the light of the principles of equal treatment and sound administration, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way. However, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality. Consequently, a person who seeks registration of a sign as a trade mark cannot rely, to his own benefit, on any unlawful act committed in favour of another in order to obtain an identical decision. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and comprehensive, in order to prevent trade marks being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a trade mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see judgment of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 93 and the case-law cited).
193

The Commission replies that the applicants have not proven that the conditions for incurring non-contractual liability for the administration were satisfied in the present case. In the first place, it submits, in regards to the unlawful conduct arising from the infringement of the principles and duties referred to by the applicants, that it was in a situation of ‘circumscribed powers’ requiring it to adopt a decision to recover undue payments, as the time limit of five years had been observed and the conditions laid down in Article 85 of the Staff Regulations were satisfied. Individual circumstances such as diligent conduct on the part of the party concerned or the effects that the incorrectly-calculated pensions might have indirectly had on his life choices cannot preclude the adoption thereof. Moreover, the decision to request secondment to Parma, with a much lower salary package than that of the original posting in Brussels, was solely the result of Mr Alberto Spagnolli’s decision. Furthermore, Mr Alberto Spagnolli was able to put forward his views a number of times to the administration which, in keeping with the principle of sound administration, always followed up on his requests promptly, as evidenced by the correspondence between them. Moreover, the alleged infringement of the duty to have regard for the welfare of staff has not been substantiated and cannot lead to the contested decision being held to be illegal since, according to the case-law, that duty cannot in any event depart from the principle of legality (judgment of 23 October 2012, Eklund v Commission, F‑57/11, EU:F:2012:145, paragraph 83). Moreover, an alleged legitimate expectation as to the intangibility of the calculations of the pension entitlements could not have arisen had there not been specific assurances from the Commission and where the notices containing the calculations of the pension entitlements always contain a statement to the effect that, under Article 41 of Annex VIII to the Staff Regulations, the appointing authority reserves the right to make any checks and, where necessary, to revise its decision, potentially with retroactive effect, on the basis the evidence available to it. Lastly, as the conditions laid down in Article 85 of the Staff Regulations for the adoption of the decision to recover undue payments were observed, the applicants cannot argue that that decision is illegal.
35

In the present case, Article 11(1) and (2) of Regulation No 885/2006, upon which the Kingdom of Sweden relies, applied with effect from 16 October 2006 and reads as follows: ‘Conformity clearance 1. When, as a result of any inquiry, the Commission considers that expenditure was not effected in compliance with [EU] rules, it shall communicate its findings to the Member State concerned and indicate the corrective measures needed to ensure future compliance with those rules. The communication shall make reference to this Article. The Member State shall reply within two months of receipt of the communication and the Commission may modify its position in consequence. In justified cases, the Commission may agree to extend the period for reply. After expiry of the period for reply, the Commission shall convene a bilateral meeting and both parties shall endeavour to come to an agreement as to the measures to be taken as well as to the evaluation of the gravity of the infringement and of the financial damage caused to the [EU] budget. 2. Within two months from the date of the reception of the minutes of the bilateral meeting referred to in the third subparagraph of paragraph 1, the Member State shall communicate any information requested during that meeting or any other information which it considers useful for the ongoing examination. In justified cases, the Commission may, upon reasoned request of the Member State, authorise an extension of the period referred to in the first subparagraph. The request shall be addressed to the Commission before the expiry of that period. After the expiry of the period referred to in the first subparagraph, the Commission shall formally communicate its conclusions to the Member State on the basis of the information received in the framework of the conformity clearance procedure. The communication shall evaluate the expenditure which the Commission envisages to exclude from [EU] financing under Article 31 of Regulation (EC) No 1290/2005 and shall make reference to Article 16(1) of this Regulation.’
10

In the contested decision, in the first place, the Commission considered the measure at issue, implemented by IVF, to be a transfer of State resources and imputable to the Kingdom of Spain. In the second place, the beneficiary of the aid was the applicant and not Fundación Hércules, which acted as a financial vehicle, particularly in view of the purpose of the measure which was to facilitate the funding of the applicant’s capital increase. The applicant’s financial situation at the time that the measure at issue was implemented was that of a firm in difficulty within the meaning of points 10(a) and 11 of the Commission Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2; ‘the R&R guidelines’). With regard to the criteria set out in the Commission Notice on the application of Articles [107] and [108 TFEU] to State aid in the form of guarantees (OJ 2008 C 155, p. 10) (‘the guarantee notice’) and bearing in mind the applicant’s financial situation and the terms of the State guarantee from which it had benefitted, the Commission concluded that an undue advantage existed which was liable to distort or threaten to distort competition and affect trade between Member States. In addition, the Commission quantified, in the contested decision, the element of aid allegedly granted to the applicant using the reference rate applicable under its Communication on the revision of the method for setting the reference and discount rates (OJ 2008 C 14, p. 6), since a meaningful comparison on the basis of similar transactions on the market was impossible. When quantifying the aid at issue, the Commission considered that the value of the shares in the applicant pledged to IVF by way of counter-guarantee was close to zero. Lastly, the Commission found, in the contested decision, that the aid at issue was not compatible with the internal market, in particular with regard to the conditions and principles laid down in the R&R guidelines.
47

The Commission begins its response to those submissions by making some preliminary comments. It notes that it considered that all retail undertakings were in a comparable factual and legal situation in the light of the objective of the tax in question and that the progressive structure of its rates led to discrimination between those undertakings according to their size, which was not justified by the purpose or nature of the tax, since undertakings with a low turnover were subject to an average effective rate of zero or a lower average effective rate than undertakings with a higher turnover. Thus, almost all small and medium-sized independent retailers were in practice exempted or taxed at an average effective rate of less than 0.8% on their total turnover, while large format retailers, such as integrated chains of hypermarkets, were subject to an average effective rate closer to the maximum rate of 1.4%, which would significantly reduce their profits. Polish-owned retail undertakings generally benefit from the system while foreign-owned undertakings are taxed at a higher average rate. The Commission notes in this respect that according to various publicly available reports, out of nearly 200000 shops or retail undertakings, only about one hundred would have been liable to the tax in September 2016, the proceeds of which would have been PLN 114 million, of which approximately PLN 80 million would have been owed by the 10 largest undertakings. Only 12 undertakings would have reached the 1.4% tax band. According to the Commission, various political declarations in Poland also clearly stated that the tax aimed to re-balance the terms on which small undertakings and international retail chains compete. Moreover, a retail chain that is organised on a franchise model pays little or no tax, while an integrated distribution chain generating the same turnover pays far more. The Commission provides the example of the Carrefour Group, which is partly organised on an integrated model and would be taxed for that part at an average rate of 1.2%, while the Polish retail chain Lewiatan, which operates on a franchise model and is itself divided into 16 companies, with a higher total turnover than Carrefour, would be taxed at an average rate of almost zero. In that regard, although foreign-owned chains, such as the Carrefour Group, also use franchising, the franchisees are precisely the local Polish undertakings who are advantaged by the tax measure in question. However, at the hearing, in respect of establishing the selectivity of the advantages generated by the progressive structure of the rates of the tax on the retail sector, the Commission emphasised that the contested decisions were not adopted on the basis that discrimination according to the national origin of the taxpayers had been identified.
Judgment of the General Court (First Chamber) of 15 March 2018 — Hermann Bock v EUIPO (Push and Ready)

(Case T‑279/17)

(EU trade mark — Application for EU figurative mark Push and Ready — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

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 17- 20, 27, 35)

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, 22)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Figurative mark Push and Ready (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 32, 36-39, 44, 45)

4. 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 (Council Regulation No 207/2009) (see para. 40)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 January 2017 (Case R 1279/2016-5) concerning an application for registration of the figurative sign Push and Ready as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 8 November 2017 – Steiniger v EUIPO – ista Deutschland (IST)

(Case T-80/17)

(European Union trade mark — Opposition proceedings — Application for EU figurative mark IST — Prior EU figurative mark ISTA — Relative ground for refusal — Relevant public — Similarity of the goods and services — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Likelihood of confusion with the earlier mark–Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19, 64)

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–Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 24, 25)

3. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Likelihood of confusion with the earlier mark–Figurative marks IST and ISTA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 31, 41, 45, 62, 63, 66)

4. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Likelihood of confusion with the earlier mark–Assessment of the likelihood of confusion–Determination of the relevant public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

5. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Similarity between the goods or services in question–Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 32)

6. EU trade mark–Definition and acquisition of the EU trade mark–Relative grounds for refusal–Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services–Similarity of the marks concerned–Criteria for assessment–Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 44)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 1 December 2016 (Case R 2242/2015-5) concerning opposition proceedings between ista Deutschland and Mr Steiniger.

Operative part

The Court:

1. Dismisses the action;
EU trade mark—Procedural provisions—Revocation proceedings—Facts and evidence not submitted within the prescribed time-limit—Account taken—Discretion of the Board of Appeal

(Council Regulation No 207/2009, Arts 51(1)(a) and 76(2); Commission Regulation No 2868/95, Art. 1, Rule 40(5))

(see paras 26-31)
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 paras 13, 14, 28-31)