ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Third Chamber) of 20 September 2016 —

Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT)

(Case T‑565/15)

‛EU trade mark — Opposition proceedings — Application for the EU word mark MERLIN’S KINDERWELT — Earlier national word mark KINDER — Relative ground for refusal — No similarity between the signs — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

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)

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 — Word mark MERLIN’S KINDERWELT and word mark KINDER (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 61-65)

3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 24)

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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25-27)

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 of the marks concerned — Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1538/2014-1), relating to opposition proceedings between Ferrero and Excalibur City.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 July 2015 (Case R 1538/2014-1);

2. Orders EUIPO to bear its own costs and to pay those incurred by Excalibur City s.r.o.;
Judgment of the General Court (First Chamber) of 29 March 2017 —

J & Joy v EUIPO — Joy-Sportswear (J&JOY)

(Case T‑389/15)

(EU trade mark — Opposition proceedings — EU figurative mark J&JOY — Earlier national figurative mark joy SPORTSWEAR — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Assessment criteria — Composite mark — Article 8(1)(b) of Regulation (EC) No 207/2009)

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 16, 28, 82)

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—Figurative mark J&JOY and figurative mark SPORTSWEAR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 22, 29, 96, 97)

3. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33, 34)

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—Similarity of the marks concerned—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 55, 68)

5. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 62)

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—Likelihood of confusion with the earlier mark—Weak distinctive character of the earlier mark—Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 92)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 22 April 2015 (Case R 1355/2014-2) relating to opposition proceedings between Joy-Sportswear and J & Joy.

Operative part

The Court:

1. Dismisses the action;
State aid—Concept—Measures designed to compensate for the cost of public service missions undertaken by an undertaking—First condition set out in the Altmark judgment—Clearly defined public service obligations—No recipient undertaking actually entrusted with carrying out public service obligations—Inclusion in the concept—Weakening of the market—Fact not sufficient for a finding that a service of general economic interest exists

(Arts 14 TFEU, 106(2) TFEU and 107 TFEU; Protocol No 26 annexed to the EU and FEU Treaties)

(see paras 96, 103-105, 108, 109)
Judgment of the General Court (First Chamber) of 29 March 2017 —

J & Joy v EUIPO — Joy-Sportswear (J AND JOY)

(Case T‑387/15)

(EU trade mark — Opposition proceedings — EU word mark J AND JOY — Earlier national figurative mark joy SPORTSWEAR — Relative grounds for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Assessment criteria — Composite mark — Article 8(1)(b) of Regulation (EC) No 207/2009)

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 16, 28, 82)

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—Word mark J AND JOY and figurative mark SPORTSWEAR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 22, 29, 96, 97)

3. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 33, 34)

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—Similarity of the marks concerned—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 55, 68)

5. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No207/2009) (see para. 62)

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—Likelihood of confusion with the earlier mark—Weak distinctive character of the earlier mark—Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 92)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 22 April 2015 (Case R 1352/2014-2) relating to opposition proceedings between Joy-Sportswear and J & Joy.

Operative part

The Court:

1. Dismisses the action;
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 — Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 49)
Judgment of the General Court (Ninth Chamber) of 11 May 2017 —

KK v EASME

(Case T‑376/15)

(Horizon 2020 — the Framework Programme for Research and Innovation — Call for proposals in respect of the 2014-2015 work programme — Programme to support innovation within SMEs — EASME decision declaring a proposal ineligible — ‘Single submission’ rule — Evaluation review procedure — E-portal for filing proposals temporarily inaccessible — Error of assessment — Infringement of the procedural rules — Non-contractual liability)

1. Industry—Action necessary to ensure the competitiveness of industry—Research and technical development—Framework Programme for Research and Innovation (Horizon 2020)—Assessment of projects submitted following a call for proposals—Permanent open call—Single submission rule (European Parliament and Council Regulation No 1291/2013) (see paras 58, 59)

2. Non-contractual liability—Conditions—Unlawfulness—Damage—Causal link—One of the conditions not satisfied—Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 71-77)

Re:

ACTION on the basis of Article 263 TFEU seeking the annulment of the decision of EASME of 15 June 2015 rejecting the proposal submitted by the applicant in response to the Call for proposals and related activities under the 2014-15 work programmes under Horizon 2020 — the Framework Programme for Research and Innovation (2014-20) and under the Research and Training Programme of the European Atomic Energy Community (2014-18) complementing Horizon 2020 (OJ 2013 C 361, p. 9) and, in addition, seeking compensation for the loss which the applicant allegedly suffered as a result of that rejection.

Operative part

The Court:

1. Dismisses the action;
Competition — Administrative procedure — Examination of complaints — Determination of priorities by the Commission — Commission’s duty to adopt a decision as to the existence of an infringement — Account to be taken of the EU interest in investigating the case — Discretionary power of the Commission — Criteria for assessment — Judicial review — Limits

(Arts 101 TFEU, 102 TFEU and 105(1) TFEU; Council Regulation No 1/2003; Commission Regulation No 773/2004, Art. 7)

(see paras 29-34)
As regards the first condition for application of Article 8(4) of Regulation No 207/2009 on the EU trade mark, it should be noted that, according to the case-law, a sign is used in the course of trade where that use occurs in the context of commercial activity with a view to economic advantage and not as a private matter.

As regards the relevant period for the purpose of assessing that condition, it is clear from the case-law that an applicant for a declaration of invalidity must prove that the sign relied on was used in the course of trade before the date of application for registration of the EU mark at issue. Furthermore, according to the case-law, that sign must still be in use at the time of filing of the application for a declaration of invalidity. In other words, it must be established that the sign relied on was used not only on the date of filing of the application for registration of the EU mark, but also on the date of filing of the application for a declaration of invalidity, and where such evidence is furnished it may legitimately be considered that that sign was ‘still ... in use’ on the latter date, within the meaning of the case-law cited above.

(see paras 47, 48)
Agriculture—EAGF and EAFRD financing—Grant of aid and premiums—Obligation on the Member States to organise an effective system of administrative and on-site inspections—Scope—Possibility to substitute checks included in the cross compliance scheme with other external checks—Not included

(European Parliament and Council Regulation No 1306/2013, Art. 52(1); Council Regulation No 1290/2005, Art. 9(1)(a)(i))

(see paras 40, 41)
Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the procedure for the award of a public service contract, not to accept a tender—Obligation on the awarding authority to notify, on written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer—Obligation to provide a detailed summary as how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender—None

(Art. 296 TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161)

(see paras 37-39, 58-60, 69)
EU trade mark–Definition and acquisition of the EU trade mark–Absolute grounds for refusal–Overlapping of the scope of the grounds set out in Article 7(1)(b) and (c) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 7(1)(b) and (c))

(see para. 95)
Proof of ownership of an unregistered mark corresponds to specific requirements. The opponent may not, for example, produce a certificate of filing or registration of the mark on which the opposition is based to prove that he is the proprietor of that mark. He must prove that, by use of the earlier unregistered mark, he has acquired rights over that mark.

It is not apparent from any provision that the opponent who brings opposition proceedings under Article 8(2)(c) of Regulation No 207/2009 on the European Union trade mark must prove that he is the ‘exclusive’ proprietor of the earlier well-known unregistered mark on which he bases his opposition. It may be inferred from Article 41 of Regulation No 207/2009, Rule 19(2) and Rule 20(1) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark that the opponent is required to prove that he has acquired sufficient rights in the earlier well-known unregistered mark, within the meaning of Article 8(2)(c) of Regulation No 207/2009, to be regarded as proprietor of that mark, something which does not involve establishing exclusive ownership of that mark.

Rule 15(1) of Regulation No 2868/95 provides, moreover, that, ‘if an earlier mark and/or an earlier right has more than one proprietor (co-ownership), the opposition may be filed by any or all of them’, which allows each of the co-owners of an earlier mark to oppose the registration of a mark that is applied for.

(see paras 46, 47)
It follows from Article 4, 5 and 7 of Regulation No 294/2008 establishing the European Institute of Innovation and Technology (EIT), and from Article 15 of Regulation No 1290/2013 laying down the rules for participation and dissemination in ‘Horizon 2020’ — the Framework Programme for Research and Innovation (2014-2020), that, first, the selection and designation of Knowledge and Innovation Communities fall within the competence of the EIT governing board and that, second, independent experts participate in the selection procedure by evaluating proposals for the designation of such communities, in order to classify them. That governing board selects the Knowledge and Innovation Communities on the basis of that classification.

However, even when the EIT commissions external experts, it is not thereby exempted from assessing their work. In that regard, the governing board of the EIT has failed fully to exercise its powers in respect of the selection of proposals, in breach of the provisions of Article 4 of Regulation No 294/2008, where it has delegated some of those powers to experts without having, at any time, had the opportunity to make a proper assessment of the work they carried out on the proposals which were not ranked in the first three places. The fact that the governing board has adopted the wording of the call for proposals, the Knowledge and Innovation Community selection criteria and the selection criteria for the experts responsible for the evaluation of the proposals, and that it has monitored the full procedure leading to their selection cannot call into question that finding.

(see paras 55, 56, 67, 68)
Agriculture—Common organisation of the markets—Fruit and vegetables—Producers’ organisations—Financing by the EAGF—Recognition of those organisations by national authorities—Conditions—Inspection of organisations by the Member States—Scope—Continuity between the old and the new regulatory framework

(Council Regulations No 1182/2007, Arts 4 and 55(2), and No 1234/2007, Art. 125b; Commission Regulations No 1432/2003, Art. 20 and No 1580/2007, Art. 108)

(see paras 44-48, 53, 55-58)
Judgment of the General Court (First Chamber) of 20 June 2018 –

KV v EACEA

(Joined Cases T‑306/15 and T‑484/15)

(Arbitration clause — Grant agreements concluded in the context of the Lifelong Learning Programme (2007-2013) — NEST and ‘This is IT’ projects — Ineligible costs — Reclassification of the action)

1. Judicial proceedings—Legal basis of an action—Choice for the applicant and not the EU judicature (see para. 31)

2. Actions for annulment—Action relating in reality to a contractual dispute—Action directed against a decision of an EU agency inextricably linked to contractual relations between it and the applicant—No jurisdiction of the EU judicature—Inadmissibility (Art. 263 TFEU) (see paras 36, 43)

3. Actions for annulment—Action relating in reality to a contractual dispute—Reclassification of the action—Conditions (Arts 263 TFEU and 272 TFEU; Rules of Procedure of the General Court, Art. 76(d)) (see paras 44, 45, 47, 49)

4. EU budget—EU financial assistance—Obligation on the beneficiary to comply with the conditions for grant of the assistance—Financing covering only expenses actually incurred—Demonstration that the expenses actually incurred—None—Ineligible expenses—Proper technical implementation of projects forming the subject-matter of EU financial assistance—Irrelevant (Art. 317 TFEU) (see paras 57, 58)

5. National law—Reference to national law—Greek law—Employment law—Determination of the existence of an employment contract (see paras 69, 70, 89-91)

Re:

Actions pursuant to Article 272 TFEU and seeking a declaration that, by declaring ineligible some of the staff costs incurred by the applicant in connection with the Network for Staff and Teachers in Childcare Services (‘NEST’) and Facilitating and fostering digital competence through volunteers — This is IT (‘This is IT’) projects, the EACEA did not correctly interpret and apply the contractual provisions relating to those projects.

Operative part

The Court:

1. Joins Cases T‑306/15 and T‑484/15 for the purposes of the decision closing the proceedings;

2. Dismisses the actions;
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 right to property — None

(Arts 101 and 345 TFEU; Charter of Fundamental Rights of the European Union, Art. 17)

(see paras 77-82)
59

The Board of Appeal confined itself to finding that the evidence provided showed that the earlier mark had been used by the applicant in a descriptive manner, namely in order to describe a bottle of a certain size. Furthermore, as EUIPO and the intervener correctly pointed out in their written pleadings and at the hearing, the Board of Appeal did not in any way examine the distinctive character of that mark per se in the opposition proceedings, but the perception of the sign resulting from the actual conditions of its use as a trade mark for the purposes of Article 42(2) of Regulation No 207/2009, as it is required to do in assessing whether the use of any earlier mark is genuine. The argument that the lack of distinctive character established by the Board of Appeal is exclusively based on documents which were provided by the intervener and postdate the relevant period (see paragraph 27 above) must be rejected as unfounded since, first, the Board of Appeal in no way found that the earlier mark lacked distinctive character and, secondly, that argument has no factual basis. Contrary to what the applicant maintained at the hearing in response to a question put by the Court, it is clear, inter alia, from paragraphs 21 and 39 to 44 of the contested decision that the Board of Appeal took the view that the earlier mark had not been put to genuine use on the basis, primarily, of the evidence provided by the applicant, which does not postdate the relevant period.
85

In particular, the following points should be noted: — first of all, several articles having different dates and coming from different sources clearly and specifically describe the applicant’s relationship with the regime. In the first place, the book published in 2006 entitled Governance in the Middle East and North Africa described Mr Hamsho, in the context of the closure of the private television channel ‘the Cham Satellite channel’, as ‘a close friend of the President’s, who was about to launch his own television station’. In the second place, the two articles published in February 2012 on the websites ‘The Middle East Research and Information Project (MERIP)’ stated that ‘Mr Hamsho [was] a businessman close to Mr Maher el-Assad’ and that ‘families associated with the regime in one way or another [had come] to dominate the private sector, in addition to exercising considerable control over public economic assets [and that] these claims include[d] the … Hamsho [family]’. In the third place, the article published in November 2013 in the journal Le Commerce du Levant stated that ‘the interests of the most powerful businessmen, including Mr Mohammad Hamsho, [were] so dependent on the power that they [were] regarded as an integral part of the system in place’ and that, ‘although small in number, these businessmen [had] a wide financial base’; — next, the article published on 30 June 2014 on the website ‘Woldcrunch’ also describes the applicant’s business activities as follows: ‘Mr Hamsho, a servant of the Syrian oligarch Mr Maher el-Assad, owns the very profitable market of VOIP (Voice Over Internet Protocol) towards Syria [and] is about to be awarded a permit by the country’s Tourism Ministry to develop an artificial island project near Tartus’; — furthermore, the two articles published on 3 and 30 March 2014 respectively on the websites ‘The Syria Report’ and ‘Syriandays’ describe the applicant’s appointment to the post of Chairman for China of the Syrian Bilateral Business Councils by the Minister for the Economy, Mr Khodr Orfali, and his participation with the Prime Minister, Mr Wael al-Halqi, and the Minister for the Economy, among others, in the first general meeting of the Bilateral Business Councils on 29 March 2014; — last, the article published on 12 January 2015 on the website ‘The Syria Report’ states that the applicant was appointed Secretary-General of the Damascus Chamber of Commerce in early December 2014 by the Minister for the Economy and that he is close to Mr Maher el-Assad and the main shareholder of Hamsho International, a group which is actively operating in the IT sector. The article asserts that the reason for the radical change in the board of directors of that Chamber of Commerce is the consequence of several factors, such as the political stance taken by some businessmen vis-à-vis the regime.