ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Eighth Chamber) of 15 September 2016 — JT International v EUIPO — Habanos (PUSH)

(Case T‑633/15)

‛EU trade mark — Opposition proceedings — Application for the EU word mark PUSH — Earlier Benelux and national word and figurative marks PUNCH — Relative ground for refusal — Likelihood of confusion — Identity of the goods — Similarity of the signs — 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, 17, 44)

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 — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 18)

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 — Word mark PUSH and word and figurative marks PUNCH (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 19-21, 45)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 10 August 2015 (Case R 3046/2014-5), relating to opposition proceedings between Corporación Habanos and JT International.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 22 September 2016 — Intercon v Commission

(Case T‑206/15)

‛Arbitration clause — Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — Grant agreement relating to the project ‘Virtual Pathological Heart of the Virtual Physiological Human’ — Commission decision to require repayment of a part of the sums paid — Inadmissibility — Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991 — Documents and observations made after expiry of the prescribed periods’

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based (Rules of Procedure of the General Court (1991), Art. 44(1)(c)) (see para. 30)

Re:

APPLICATION based on Article 272 TFEU and seeking a declaration, first, that the Commission infringed the provisions of the grant agreement No 224635 relating to financing the project ‘Virtual Pathological Heart of the Virtual Physiological Human (VPH2)’, and, second, that the sums paid by way of the EU financial contribution corresponded to eligible expenditure and that the amount of EUR 70620 demanded from the applicant by the Commission’s letter of 28 January 2015 and the debit note attached as an Annex need not, therefore, be repaid.

Operative part

The Court:

1. Dismisses the action;
Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—General Court’s review of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

(see para. 27)
5.

Appeal — Pleas in law — No precise criticism of a point of reasoning of the Civil Service Tribunal and no legal arguments in support of the appeal — Inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the General Court, Art. 194) (see para. 39)
Judgment of the General Court (Second Chamber) of 16 March 2017 — Capella v EUIPO — Abus (APUS)

(Case T‑473/15)

(EU trade mark — Opposition proceedings — Application for the EU word mark APUS — Earlier national word mark ABUS — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Likelihood of confusion — Successive restrictions of the trade mark application before the Board of Appeal — Article 43(1) of Regulation No 207/2009 — Competence of the Board of Appeal — Article 64(1) of Regulation No 207/2009 — Right to be heard — Article 75, second sentence, of Regulation No 207/2009 — Rule 13(3) of Regulation (EC) No 2868/95)

1. EU trade mark — Appeals procedure — Appeal to a Board of Appeal — Competence of the Boards of Appeal — New full examination of the merits (Council Regulation No 207/2009, Art. 64(1)) (see paras 36-38)

2. EU trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 47)

3. EU trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 48-52, 59)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 2 June 2015 (Case R 117/2014-4), relating to opposition proceedings between Abus August Bremicker Söhne and Capella.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 June 2015 (Case R 117/2014-4);

2. Orders EUIPO, in addition to bearing its own costs, to pay those incurred by Capella EOOD;
Judgment of the General Court (Seventh Chamber) of 27 April 2017 — Deere v EUIPO (EXHAUST-GARD)

(Case T‑622/15)

(EU trade mark — Application for the EU word mark EXHAUST-GARD — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation No 207/2009 — Rights of the defence — Article 75 of Regulation (EC) No 207/2009)

1. EU trade mark—Decisions of the Office—Observance of the rights of the defence—Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see para. 12)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24, 26-29, 42, 45)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Word mark EXHAUST-GARD (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 46, 49)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 8 September 2015 (Case R 196/2014-4), concerning an application for registration of the word sign EXHAUST-GARD as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
The proprietor of a contested trade mark enjoys, under the first sentence of Article 9(1) of Regulation No 207/2009, exclusive rights in that mark. It is apparent from the provisions of Articles 51 and 55 of Regulation No 207/2009 that an EU trade mark enjoys a presumption of validity. It follows that an applicant cannot usefully rely, in support of its action, concerning revocation proceedings based on Article 51(1)(a) of Regulation No 207/2009, on the alleged assignment to a third party of the rights relating to a name, before the registration of that name as a trade mark, to establish that that trade mark was not put to genuine use by the proprietor or with his consent, for the purposes of Article 15 of that regulation.

(see paras 49, 50)
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Use of the mark in a form differing by elements not altering the distinctive character of the mark

(Council Regulation No 207/2009, Arts 15(1), second subpara., (a), and 42(2) and (3))

(see para. 22)
European Union—Judicial review of the legality of the acts of the institutions—Restrictive measures against Syria—Ambit of the review

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2015/383/CFSP; Council Regulation 2015/375)

(see paras 36-38)
Judgment of the General Court (Second Chamber) of 3 May 2017 — Environmental Manufacturing v EUIPO — Société Elmar Wolf (Representation of a wolf’s head)

(Case T‑681/15)

(EU trade mark — Opposition proceedings — Application for an EU figurative mark representing a wolf’s head — Earlier international figurative mark Outils WOLF — Relative ground for refusal — 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 29, 30, 67)

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 representing a wolf’s head — Figurative mark Outils WOLF (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 36, 38, 69, 70)

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 — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 40, 46)

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 — Figurative marks — Phonetic comparison (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 52, 53)

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 — Likelihood of confusion with the earlier mark — High distinctiveness of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 68, 72)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 3 September 2015 (Case R 1252/2015-1), relating to opposition proceedings between Société Elmar Wolf and Environmental Manufacturing.

Operative part

The Court:

1. Dismisses the action;
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 — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 20)
European Union—Judicial review of the legality of the acts of the institutions—Restrictive measures against Syria—Ambit of the review

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2015/383/CFSP; Council Regulation 2015/375)

(see paras 35-37)
Judgment of the General Court (Fourth Chamber) of 17 January 2017 — Cofely Solelec and Others v Parliament

(Case T‑419/15)

(Public works contracts — Procurement procedure — Extension and renovation of the Konrad Adenauer building in Luxembourg — Annulment of the procurement procedure — Obligation to state reasons — Market value — Manifest error of assessment)

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision taken in a context known to the addressee — Whether summary statement of reasons sufficient (Art. 296 TFEU) (see paras 59-61)

2. European Union public contracts — Tender procedure — Calculation of the market value — Discretion of the awarding authority — Judicial review — Limits — Manifest error of assessment — Burden of proof (European Parliament and Council Regulation No 966/2012, Art. 118) (see paras 95, 96, 98)

Re:

APPLICATION under Article 263 TFEU for annulment of the decisions contained in the letters with references D(2015)24297 and D(2015).28116 from the European Parliament’s Directorate-General for Infrastructure and Logistics, respectively of 29 May and 11 June 2015, notifying the applicants of the annulment of the procurement procedure INLO-D-UPIL-T 14-A04 for the award of Lot No 75, entitled ‘electricity — power’ for the project to extend and modernise the Konrad Adenauer building in Luxembourg (Luxembourg).

Operative part

The Court:

1. Dismisses the action;
It is clear from Articles 101 and 102 of Regulation No 966/2012, on the financial rules applicable to the general budget of the Union, and of Article 134(1)(h) of Regulation No 1268/2012 on the rules of application of the Financial Regulation that, in the context of a negotiated procedure without prior publication of a contract notice, the contracting authority concerned has a broad discretion as to the information to be taken into consideration in deciding whether or not to award the building contract concerned and the choice of successful tenderer, since the award of the contract does not necessarily have to be put out on the broadest possible basis between the parties concerned. The same is true a fortiori in the phase of prospecting the local market which precedes the negotiation phase of the contract itself, in accordance with the principles of transparency, equal treatment and non-discrimination. That very broad discretion is also accorded to the contracting authority in the choice and evaluation of the selection criteria, where it has defined them in the contract documents relating to the negotiated procedure concerned.

In those circumstances, the review by the EU judicature of the negotiated procedure for the award of the building contract itself and the phase of prospecting the local market which precedes it must be limited to verifying compliance with the procedural rules that the contracting authority intended to put in place, rules governing procedure and the statement of reasons, the material accuracy of the facts, and absence of manifest error of assessment or misuse of power. In the course of its review, the court is also required to check that contracting authority concerned has complied with the principles of transparency, proportionality, equal treatment and non-discrimination, as set out in Article 102 of Regulation No 966/2012.

(see paras 18, 19)
Judgment of the General Court (Seventh Chamber) of 28 September 2017 — Aanbestedingskalender and Others v Commission

(Case T‑138/15)

(State aid — Financing measures granted by the Netherlands authorities for the creation and introduction of the TenderNed electronic procurement platform — Decision finding no State aid — Non-economic services of general interest)

1. State aid—Concept—Criteria for assessment—Cumulative conditions (Art. 107(1) TFEU) (see para 30)

2. Competition—EU rules—Undertaking—Concept—Exercise of an economic activity—Activities connected with the exercise of public power prerogatives—Not included (Art. 107(1) TFEU) (see paras 32-38)

3. Competition—EU rules—Undertaking—Concept—Exercise of an economic activity—E-procurement platform offering a number of functionalities available free-of-charge to contracting entities—Not included—Activities connected with the exercise of public power prerogatives (Art. 107(1) TFEU) (see paras 55-60, 69-71, 73-81, 86, 87, 89-91, 103-108, 116)

Re:

ACTION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2014) 9548 final of 18 December 2014 on State aid SA.34646 (2014/NN) (ex 2012/CP) — The Netherlands E-procurement platform TenderNed.

Operative part

The Court:

1. Dismisses the action;

2. Orders Aanbestedingskalender BV, Negometrix BV, CTM Solution BV, Stillpoint Applications BV and Huisinga Beheer BV to pay the costs;
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 — 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 paras 41, 42)
EU trade mark—Surrender, revocation and invalidity—Examination of the application—Proof of use of the earlier mark—Genuine use—Examination by EUIPO of its own motion—None

(Council Regulation No 207/2009, Arts 15, 42(2), 51(1), 57(2) and 76(1); Commission Regulation No 2868/95, Art. 1, Rule 40(5))

(see paras 28-31, 55-57)
Case T‑386/15

(publication by extracts)

Jordi Nogues, SL

v

European Union Intellectual Property Office

(EU trade mark — Opposition proceedings — Application for EU figurative mark BADTORO — Earlier EU figurative and word marks TORO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation 207/2009/EC — Suspension of the administrative proceedings — Rule 20(7)(c) of Regulation (EC) No 2868/95)

Summary — Judgment of the General Court (Seventh Chamber), 20 September 2017

EU trade mark — Appeals procedure — Appeal to a Board of Appeal — Stay of proceedings — Conditions

(Commission Regulation No 2868/95, Art. 1, Rules 20(7)(c), and 50(1))

According to the case-law, the Board of Appeal’s discretion as to whether or not to suspend proceedings is broad. Suspending proceedings remains optional for the Board of Appeal, which will do so only if it considers it appropriate. Proceedings before the Board of Appeal are therefore not automatically suspended as a result of a request for suspension made by a party before it.

The fact that the Board of Appeal has a broad discretion to suspend proceedings before it does not mean that the assessment of that discretion falls outside the scope of judicial review by the Courts of the European Union. That fact does, however, restrict judicial review on the merits to ensuring that there is no manifest error of assessment or misuse of powers.

In that regard, it follows from the case-law that, even if it were established that an action was pending before a national court in which the earlier trade mark on which a contested decision was based was under challenge, that fact would not be a sufficient basis, in itself, for categorising the Board of Appeal’s refusal to suspend proceedings as a manifest error of assessment. In exercising its discretion with respect to the suspension of proceedings, the Board of Appeal must observe the general principles governing procedural fairness within a European Union governed by the rule of law. It follows that, in exercising that discretion, the Board of Appeal must take into account not only the interests of the party whose application for an EU mark is being contested, but also those of the other parties. The decision whether or not to suspend must follow upon a balancing of the competing interests.

(see paras 21-23)
In the context of the withdrawal of a decision declaring aid incompatible with the internal market, the procedure for replacing an illegal measure may be resumed at the very point at which the illegality occurred, and the Commission is not required to recommence the procedure by going back further than that precise point. This also applies, in the absence of any Court annulment of the measure, when the author withdraws and replaces an illegal measure.

Nevertheless, the fact that the Commission is not required to recommence the procedure by going back further than the precise point at which the illegality occurred does not, however, mean that it is not, as a matter of principle, required to call on the interested parties to submit their observations before a new decision is adopted.

It follows from Article 108(2) TFEU and from Article 1(h) of Regulation No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty that, during the investigation phase, the Commission must give interested parties, including the undertakings concerned and the infra-State body which granted the aid, an opportunity to submit their comments. This rule is in the nature of an essential procedural requirement. It must allow the interested parties concerned to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case. In that context, it has in particular already been held that the Commission was required, where appropriate, to ask interested parties for comments where the legal regimes changed before the Commission took its decision on the basis of the new rules, unless that new legal regime did not contain any substantial change in relation to that previously in force.

Furthermore, even if it is permissible for the opening decision merely to summarise the relevant issues of fact and law, to include a preliminary assessment as to the aid character of the State measure in question and to set out its doubts as to whether the measure is compatible with the internal market, that decision must give interested parties the opportunity effectively to participate in the formal investigation procedure, during which they will have the opportunity to put forward their arguments. It is necessary, in particular, for the Commission to define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments.

Finally, the infringement of the right of the interested parties to be given the opportunity to submit their comments results in the annulment of the vitiated measure, without it being necessary to determine the existence of an effect on the party that alleges such an infringement, or ascertain that the outcome of the administrative procedure might have been different.

(see paras 62, 63, 65, 66, 81)
Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Commission decision finding an infringement and imposing a fine — Requirements arising from the principle of effective judicial protection — Clarity and precision of the operative part of the decision

(Arts 101(1) and 296, second para. TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paras 222-232)
Action for annulment – Jurisdiction of the EU judicature – Scope – Judicial review of an enforceable decision of the Commission for the recovery of a claim – Jurisdiction to examine both the pleas challenging the legality of such a decision and those relating to the breach of contractual obligations giving rise to the adoption of such a decision – Observance of the right to effective judicial protection

(Arts 263 and 272 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 966/2012, Art. 79(2))

(see paras 61, 106)