ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Fourth Chamber) of 8 May 2012 —

Mizuno v OHIM — Golfino (G)



(Case T‑101/11)

Community trade mark — Opposition proceedings — Application for the Community figurative mark G — Earlier Community figurative mark G+ — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 68, 73-76)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 15 December 2010 (Case R 821/2010-1), relating to opposition proceedings between Golfino AG and Mizuno KK.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 12 June 2012 —

Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM —

Investimust (COLLEGE)



(Case T-165/11)

Community trade mark — Invalidity proceedings — Community word mark COLLEGE — Absolute ground for refusal — Absence of descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009

Community trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(c) of Regulation No 207/2009 (Council Regulation No 207/2009, Arts 7(1)(c), and 52(1)(a)) (see paras 21, 22, 24-34, 37)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 12 January 2011 (Case R 508/2010-4), concerning invalidity proceedings between Stichting Regionaal Opleidingencentrum van Amsterdam and Investimust SA.

Operative part

The Court:

1. Dismisses the action;
4

The Rules of 12 June 1990, in the version applicable in March 2009, provided inter alia as follows: ‘Article 1 1. Pending the adoption of a single Statute for Members, and irrespective of the pension rights referred to in Annexes I and II, after ceasing to hold office, Members of the European Parliament who have paid voluntary contributions to the pension scheme for at least two years shall be entitled to a pension for life payable from the first day of the calendar month following the date when they reach the age of 60 years. … Article 2 1. The amount of the pension shall be 3.5% of 40% of the basic salary of a Judge at the Court of Justice of the European Communities for each full year in office plus one-twelfth of that sum for each complete month. 2. The maximum pension shall be 70% (and the minimum pension 10.5%) of 40% of the basic salary of a Judge at the Court of Justice of the European Communities. 3. The pension shall be calculated and paid in euros. Article 3 Former Members or Members leaving office before reaching the age of 60 years may request that their pension be paid immediately, or at any time between leaving office and age 60, provided that they are not less than 50 years of age. In that case, the pension shall be the amount calculated on the basis of Article 2(1) multiplied by a coefficient determined by reference to the Member’s age when they start to draw their pension, as shown in the following table: … Article 4 (payment of part of the pension as a lump sum) 1. A maximum of 25% of the pension rights calculated on the basis of Article 2(1) may be paid as a lump sum to members or former members of the voluntary pension scheme. 2. This option must be exercised prior to the date on which payments begin and shall be irreversible. 3. Subject to the ceiling referred to in paragraph 1 above, a lump sum payment shall not affect or reduce the pension rights of a Member’s surviving spouse or dependent children. 4. The lump sum shall be calculated on the basis of the age of the Member when the pension takes effect, using the following table: … 5. The lump sum shall be calculated and paid in euros. Payment shall be made prior to the first pension payment. …’
34

As regards the classification of the measure at issue as new aid, the Commission stated as follows in the contested decision: ‘8 A[tE] was established in 1960, with certain privileges granted by the Greek State, including electricity supply at reduced price. Under the terms of the statutes laying down the privileges, the supply of electricity at reduced rate was due to expire in March 2006, provided that [DEI] gave A[tE] due notice thereof two years in advance. On 26 February 2004 (i.e. more than two years before the privilege’s expiry), [DEI] duly gave A[tE] such notice, following which [DEI] stopped applying the preferential [tariff] at the end of March 2006. 9 Consequently, from March 2006 until January 2007, A[tE] paid the standard electricity tariff applicable to large industrial consumers. 10 However, A[tE] challenged the termination of the preferential [tariff] in court and in January 2007, a first instance court ordered as an interim measure that the preferential [tariff] be resumed pending a judgment on the substance. This interim decision was in turn appealed by [DEI] and overturned in March 2008 (a judgment on the substance is still pending). 11 The practical consequence of the court decisions was that the preferential [tariff] was again applied to A[tE, and subsequently the applicant] from January 2007 to March 2008. In [the] period [at issue], according to data provided by the Greek authorities, A[tE and subsequently the applicant] paid EUR 17.4 million less than [they] would have paid under the “standard” tariff for large industrial consumers. … (f) [The measure at issue] is unlawful aid 34 [The applicant] argues that the first [order for interim measures] did not involve a substantial amendment to the [preferential tariff agreed in the contract]. Therefore, according to [the applicant], the [first order for interim measures] did not grant [it] new aid and the [preferential tariff] remained as existing aid. 35 The Commission cannot accept [the applicant’s] argument. The original terms of the preferential [tariff], which constituted existing aid, provided that the aid would end in March 2006 on condition that [DEI] gives due notice. Once this was done, the existing aid ceased, as it was due to do under the terms of the original grant of the [preferential tariff]. Any granting of a reduced electricity rate which meets the definition of State aid (as is the case here) is thus new aid, irrespective of the fact that its terms may be similar to the earlier existing aid. The case-law of the Court of Justice clearly spells out that the extension of an existing aid constitutes a new aid and must be notified [Commission v Germany, 70/72, EU:C:1973:87, paragraph 14, and Belgium v Commission, C‑197/99 P, EU:C:2003:444, paragraph 109]. A fortiori, this is also the case when a terminated existing aid is reactivated several months later. 36 As this new aid has not been notified to the Commission pursuant to Article 108 TFEU, it is unlawful.’
42

With specific regard to its binding legal effects, a decision to initiate the formal investigation procedure laid down in Article 108(2) TFEU in relation to a measure in the course of implementation and classified as new aid necessarily alters the legal situation of the measure at issue and that of the undertakings benefiting from it, in particular as regards its continued implementation. Following the adoption of such a decision, there is at the very least an element of doubt as to the legality of the measure which must lead the Member State to suspend its application, since initiation of the procedure under Article 108(2) TFEU excludes the possibility of an immediate decision that the measure is compatible with the common market, which would enable it to continue to be lawfully implemented. Such a decision could be invoked before a national court called upon to draw all the appropriate conclusions arising from an infringement of the last sentence of Article 108(3) TFEU. Finally, it is capable of leading the undertakings which are beneficiaries of the measure to refuse in any event new payments or to hold the necessary sums as provision for possible subsequent repayments. Businesses will also take account, in their relations with those beneficiaries, of the uncertainty cast on those beneficiaries’ legal and financial situation (see judgment of 24 October 2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraph 52 and the case-law cited, and order of 22 May 2015, Autoneum Germany v Commission, T‑295/14, not published, EU:T:2015:350, paragraph 17).
From the perspective of the average German-speaking consumer in the European Union, the sign fluege.de, in respect of which registration is sought for ‘Advertising; business management; business administration; office functions’, ‘Transport; packaging and storage of goods; travel arrangement’ and ’Services for providing food and drink; accommodation services’ falling respectively within Classes 35, 39 and 43 of the Nice Agreement, is descriptive of the products concerned by the Community trade mark application for the purposes of Article 7(1)(c) of Regulation No 207/2009 on the Community trade mark.

Being liable to be spontaneously perceived by the relevant public as a domain name referring to an internet page address in the field of aviation and air travel, the trade mark applied for is descriptive of the ‘transport’ services falling within Class 39 and, more specifically within those services, of air transport services. As for the other services, defined very widely in the trade mark application, all may be provided in the field of, and in close connection with, air transport and flights.

The fact of joining an element corresponding to a top-level domain to a descriptive term devoid of distinctive character does not have the effect of conferring on the resulting sign – which is then spontaneously identifiable by the relevant public as a domain name and, therefore, as a reference to an internet address – a distinctive character. The distinctive part of such a domain name is not the top-level domain, which may consist of a dot and a group of letters corresponding to the national extension, but, at most, the second-level domain to which the top-level domain is joined.

A domain name, as such, refers, at most, only to an internet address, and not to the commercial origin of goods or services of a specific producer or supplier. The practice in regard to the attribution of domain names and the use of domain names do not determine whether a domain name is, or is not, suitable for registration as a Community trade mark in the light of the absolute grounds for refusal set out in Regulation No 207/2009.

It is appropriate, in this connection, to bear in mind the need to draw a distinction between the rights derived from the registration of a domain name, on the one hand, and the rights derived from the registration of a sign as a Community trade mark, on the other hand. Accordingly, the fact that the applicant owns a domain name does not mean that, as a consequence, that name can be registered as a Community trade mark. For that to be the case, the domain name would have to fulfil all of the conditions laid down by Regulation No 207/2009 in that regard. Thus, any argument which could be linked to the absence of a requirement that the term be available by reason of an alleged exclusive right acquired over the domain name at issue is therefore irrelevant.

(see paras 20, 26, 28-31, 38, 41)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 21)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark SPORT and word marks K2 SPORTS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 28-51)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 23)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — 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. 24)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 29 November 2011 (Case R 986/2010-4), concerning opposition proceedings between K2 Sports Europe GmbH and Karhu Sport Iberica, SL.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders K2 Sports Europe GmbH to pay the costs.
Judgment of the General Court (Sixth Chamber) of 28 November 2012 — Bauer v OHIM — BenQ Materials (Daxon)

(Case T-29/12)

‛Community trade mark — Opposition proceedings — Application for Community word mark Daxon — Earlier Community word mark DALTON — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19, 33)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks Daxon and DALTON (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21-23, 27-31, 35-43)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 9 November 2011 (Case R 2191/2010-2) relating to opposition proceedings between Mrs Erika Bauer and BenQ Materials Corp.

Operative part

The Court:

1. Grants Alva Management GmbH leave to be substituted for Mrs Erika Bauer as applicant;

2. Dismisses the action;

3. Orders Alva Management to pay the costs.

Judgment of the General Court (Sixth Chamber) of 28 November 2012 — Bauer v OHIM — BenQ Materials (Daxon)

(Case T-29/12)

‛Community trade mark — Opposition proceedings — Application for Community word mark Daxon — Earlier Community word mark DALTON — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 19, 33)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks Daxon and DALTON (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21-23, 27-31, 35-43)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 9 November 2011 (Case R 2191/2010-2) relating to opposition proceedings between Mrs Erika Bauer and BenQ Materials Corp.

Operative part

The Court:

1. Grants Alva Management GmbH leave to be substituted for Mrs Erika Bauer as applicant;

2. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19-21, 46)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark LIBERTE brunes and word and figurative marks La LIBERTAD (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 25, 34, 39, 45, 48)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment — Complementary character of the products (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 24)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 27)

5. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Relevance (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 52)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 1 December 2011 (Case R 2109/2010-1), relating to opposition proceedings between Villiger Söhne GmbH and GRE Grand River Enterprises Deutschland GmbH.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders GRE Grand River Enterprises Deutschland GmbH to pay the costs.
Judgment of the General Court (Fifth Chamber) of 16 May 2013 — Aleris v OHIM — Carefusion 303 (ALARIS)

(Case T-353/12)

‛Community trade mark — Revocation proceedings — Community word mark ALARIS — Genuine use of the mark — Article 51(1)(a) and (2) of Regulation (EC) No 207/2009’

1. Community trade mark — Surrender, revocation and invalidity — No genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Concept (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 16, 17, 34)

2. Community trade mark — Surrender, revocation and invalidity — No genuine use of a trade mark — Proof of use of the earlier mark — Partial use — Effect — Concept of ‘part of goods or services’ concerned by registration (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 18-20, 22)

3. Community trade mark — Surrender, revocation and invalidity — No genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Application of the criteria to the case in question (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 35, 36)

4. Community trade mark — Surrender, revocation and invalidity — No genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Concept — Determination of a quantitative threshold of minimum use — Exclusion (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 37)

5. Community trade mark — Surrender, revocation and invalidity — No genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Criteria for assessment — Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 38)

6. Community trade mark — Appeals procedure — Action before the EU judicature — Possibility for the General Court to alter the contested decision — Limits (Council Regulation No 207/2009, Art. 65(2) and (3)) (see para. 44)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 11 May 2012 (Case R 334/2011-5) relating to revocation proceedings between Aleris Holding AB and Carefusion 303, Inc.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 May 2002 (Case R 334/2011-5) in so far as it rejects the application for revocation of the trade mark ALARIS in respect of the goods falling within Class 10 other than infusion systems, syringe pumps, volumetric pumps, controllers, thermometers and disposable thermometers;

2. Dismisses the action as to the remainder;
Judgment of the General Court (Second Chamber) of 23 October 2013 — Bode Chemie v OHIM — Laros (sterilina)

(Case T-114/12)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark sterilina — Earlier Community word and figurative marks STERILLIUM and BODE Sterillium — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 17)

2. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 18, 25)

3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative mark sterilina — Word mark STERILLIUM and figurative mark BODE Sterillium (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22-24, 32, 34, 35)

5. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — High distinctiveness of the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 33)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 16 January 2012 (Case R 2423/2010-4) relating to opposition proceedings between Bode Chemie GmbH and Laros Srl.

Operative part

The Court:

1. Dismisses the action;