ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Ninth Chamber) of 14 June 2018 –

Emcur v EUIPO — Emcure Pharmaceuticals (EMCURE)

(Case T‑165/17)

(EU trade mark — Opposition proceedings — Application for EU word mark EMCURE — Earlier EU and national word marks EMCUR — Relative ground for refusal — Similarity of the goods and services — Likelihood of confusion — 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 16, 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—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 paras 17, 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—Similarity between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 29)

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 between the goods or services in question—Complementary nature of the goods or services—Perception by the relevant public of the importance of a product or service for the use of another product or service (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 30)

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—Word mark EMCURE and word marks EMCUR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 66, 67)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 13 December 2016 (Case R 790/2016-2), concerning opposition proceedings between Emcur Gesundheitsmittel aus Bad Ems and Emcure Pharmaceuticals.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office of 13 December 2016 (Case R 790/2016-2) in so far as it concerns the services in Classes 42 and 44 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2. Dismisses the action as to the remainder;
Judgment of the General Court (Eighth Chamber) of 16 May 2018 –

Triggerball v EUIPO (Shape of a ball-like object with edges)

(Case T‑387/17)

(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a ball-like object with edges — Absolute ground for refusal — 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—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal—Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies—Not included (Council Regulation No 207/2009, Art. 65) (see para. 15)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Meaning (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 17)

3. 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 18, 19, 25)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional trade marks consisting of the shape of the product itself—Distinctive character—Criteria for assessment—Shape at issue being a (variant) of the typical shapes of the type of goods concerned—Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20-23)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Lack of distinctiveness—Trade mark made up of several elements—Possible for the competent authority to examine each of the elements making up the trade mark—Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 24)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional mark made up of the shape of a ball-like object with edges (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27, 29-33, 36)

7. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Registration of a new trade mark—Absolute grounds for refusal—Burden of proof (Council Regulation No 207/2009, Art. 7(1)) (see para. 35)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 April 2017 (Case R 376/2017-4), concerning an application for registration of a three-dimensional sign consisting of the shape of a ball-like object with edges as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based—None—Inadmissibility

(Rules of Procedure of the General Court, Art. 76(d))

(see para. 15)
Judgment of the General Court (Single Judge) of 27 June 2018 –

NCL v EUIPO (FEEL FREE)

(Case T‑362/17)

(EU trade mark — Application for EU word mark FEEL FREE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) and 7(2) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and 7(2) 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—Meaning (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 25)

2. 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 26, 27)

3. 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 28-30)

4. 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—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 31, 33)

5. 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—Slogan carrying an objective message (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 32)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Word mark FEEL FREE (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 35, 42-48)

7. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 49)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 23 March 2017 (Case R 2094/2016-4), concerning an application for registration of the word sign FEEL FREE as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
The institutions have a wide discretion in deciding upon the criteria of ability required for posts to be filled and specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, the interests of the service.

Specifically as regards conditions limiting the registration of candidates for a competition, although they are indeed liable to restrict the opportunity for institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that article. The administration’s discretion in the organisation of competitions and, more generally, in the interests of the service, allows the institution to impose conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, do not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations.

Therefore, only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard are held to be contrary to the first paragraph of Article 27 of the Staff Regulations.

Moreover, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and unimpeachable limits and did not manifestly misuse its discretion.

(see paras 30-34)
Judgment of the General Court (Third Chamber) of 12 September 2018 –

Pelikan v EUIPO — NBA Properties (NEW ORLEANS PELICANS)

(Case T‑112/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark NEW ORLEANS PELICANS — Earlier EU word marks and earlier national figurative mark Pelikan — Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 8(5) 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)

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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)

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 mark NEW ORLEANS PELICANS—Word marks and figurative mark Pelikan (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 40-44, 47, 49, 59)

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—Criteria for assessment—Early mark occupying a distinctive independent position in the trade mark sought (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 62)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 16 December 2016 (Case R 408/2016-4), concerning opposition proceedings between Pelikan Vertriebsgesellschaft and NBA Properties.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 29 June 2018 –

hoechstmass Balzer v EUIPO (Shape of a tape measure case)

(Case T‑691/17)

(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a tape measure case — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

1. Judicial proceedings—Time-limit for instituting proceedings—Claim barred by lapse of time—Unforeseeable circumstances or force majeure—Meaning—Postal delay—Not included (Rules of Procedure of the General Court, Arts 73(3) and 106(2)) (see para. 15)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Meaning (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 23, 24)

3. 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 para. 25)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional trade marks consisting of the shape of the product itself—Distinctive character—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 26-28)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional trade marks consisting of the shape of the product itself—Distinctive character—Criteria for assessment—Shape at issue being a (variant) of the typical shapes of the type of goods concerned—Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 29)

6. EU trade mark—Definition and acquisition of the EU trade mark—Assessment of the registrability of a sign—EU rules only taken into account—Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see para. 53)

7. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional mark—Shape of a tape measure case (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 57)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 July 2017 (Case R 2331/2016-4), concerning an application for registration of a three-dimensional sign consisting of the shape of a tape measure case as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 10 October 2018 –

L-Shop-Team v EUIPO (bags2GO)

(Case T‑561/17)

(EU trade mark — Application for the EU figurative mark bags2GO — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) No 2017/1001))

1. 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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 14)

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—Meaning—Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 15-21)

3. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU—Recourse by the Board of Appeal to implicit reasoning—Lawfulness—Conditions (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 27, 28)

4. 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—Assessment of the descriptive nature of a sign—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 37)

5. 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—Figurative mark bags2GO (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 38-42, 44, 49)

6. 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 paras 46, 47)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 14 June 2017 (Case R 1650/2016-5), concerning an application for registration of the figurative sign bags2GO as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 7 December 2018 –

La Zaragozana v EUIPO — Heineken Italia (CERVISIA)

(Case T‑378/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark CERVISIA — Earlier national word mark CERVISIA AMBAR — Relative ground for refusal — Similarity of the signs –Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Challenge in reliance on new elements of law or fact — Not permissible (Council Regulation No 207/2009, Art. 65) (see para. 15)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 17, 18, 39)

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 21, 22)

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 — Figurative mark CERVISIA and word mark CERVISIA AMBAR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 38, 45, 51-53)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 13 March 2017 (Case R 1241/2016-5) concerning opposition proceedings between La Zaragozana and Heineken Italia.

Operative part

The Court:

1. Annuls the Decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) issued of 13 March 2017 (Case R 1241/2016-5);
Judgment of the General Court (Seventh Chamber) of 22 November 2018 –

The Vianel Group v EUIPO — Viania Dessous (VIANEL)

(Case T‑724/17)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark VIANEL — Earlier EU word mark VIANIA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark — Appeals procedure — Action before the EU judicature — Limitation of the list of products and services after the decision of the Board of Appeal — Consequences (Council Regulation No 207/2009, Art. 43(1)) (see para. 15)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 31)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 32)

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 — Word marks VIANEL and VIANIA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 35-37, 39, 43, 45)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 14 July 2017 (Case R 285/2017-5), relating to opposition proceedings between Viania Dessous and The Vianel Group.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 207/2009, Art. 75, first sentence)

(see paras 30, 31)