ddrg/super_eurlex huggingface dataset:
It follows from Rule 22(4) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark, as amended, that the list of pieces of evidence (packages, catalogues, invoices, etc.) which it contains is not exhaustive, given that it states that those pieces of evidence ‘shall, in principle, be confined’ to the list of examples mentioned. Furthermore, the case-law confirms that there is no limit on the methods and means of proving genuine use of a mark. In that regard, it is clear that pieces of evidence like audio or video material, such as advertisements broadcast by radio or on television, are not precluded. However, they are generally available on a data carrier like a CD-ROM or a USB stick and cannot be submitted on paper or in a scanned file of such a document.

The same does not apply to other pieces of evidence, such as invoices or a catalogue, which could have been submitted on paper or by means of a file containing scanned documents, but which were stored on a CD-ROM for submission. Even though the principles referred to above do not preclude evidence in the form of a CD-ROM, the question raised concerns, above all, the methods of submitting evidence to the Office for Harmonisation in the Internal Market (Trade Marks and Designs). However, the provisions of Regulation No 2868/95 which relate specifically to the submission of communications to OHIM do not preclude the submission of evidence on a CD-ROM.

It is conceivable that the submission of evidence on a CD-ROM containing a number of electronic files may make the analysis of the items of evidence which have been submitted in that way more difficult than that of paper media or a straightforward file containing a scanned version of documents, which makes it possible for them easily to be reproduced identically by printing. In that regard, it is for the parties submitting evidence of use on CD-ROMs to make sure that the legibility of that evidence does not undermine its evidential value.

(see paras 23-29, 34, 35)
Judgment of the General Court (First Chamber) of 2 December 2015 —

Tsujimoto v OHIM — Kenzo (KENZO ESTATE)

(Case T‑522/13)

‛Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark KENZO ESTATE — Earlier Community word mark KENZO — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009 — Belated submission of documents — Discretion of the Board of Appeal — Article 76(2) of Regulation No 207/2009 — Partial refusal of registration’

1. Community trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal (Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rules 20(1), and 50(1)) (see paras 16-18)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions — Link between the marks (Council Regulation No 207/2009, Art. 8(1)(b), and (5)) (see paras 29, 30)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Taking unfair advantage of the distinctive character or repute of the earlier mark — Word marks KENZO ESTATE and KENZO (Council Regulation No 207/2009, Art. 8(5)) (see paras 41, 53-55)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions — Taking unfair advantage of the distinctive character or repute of the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see paras 45-49)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 July 2013 (Case R 1363/2012-2), relating to opposition proceedings between Kenzo and Mr K. Tsujimoto.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 17 December 2015 —

Italy v Commission

(Case T‑275/13)

‛Languages — Notice of open competition for the recruitment of administrators — Choice of second language from three languages — Language of communication with the candidates to the competition — Regulation No 1 — Article 1d(1), Article 27, first paragraph, and Article 28(f) of the Staff Regulations — Principle of non-discrimination — Proportionality’

1. European Union — Rules on languages — Regulation No 1 — Scope — Relations between the institutions and their staff — Included in the absence of specific regulations (Council Regulation No 1) (see para. 40)

2. Officials — Competitions — Holding of an open competition — Languages of communication between the European Personnel Selection Office (EPSO) and the candidates — Restriction — Inadmissibility (Staff Regulations, Annex III, Art. 1(2); Council Regulation No 1, Art. 2) (see paras 44-47)

3. Officials — Competitions — Organisation — Conditions for admission and detailed rules — Discretion of the appointing authority — Limits — Compliance with the linguistic regime laid down by Regulation No 1 (Staff Regulations, Art. 2; Council Regulation No 1, Art. 2) (see paras 51-53, 87)

4. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Distinguished from manifest error of assessment (Arts 263, second para., TFEU and 296 TFEU) (see para. 65)

5. Officials — Competitions — Holding of an open competition — Languages of participation in tests — Limitation of the choice of second language — Discrimination based on language — Justification based on the need to choose a restricted number of languages for internal communication — Inadmissibility (Staff Regulations, Arts 1d, and 28(f), and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1) (see paras 70, 71, 76, 77, 86, 100, 118, 129)

6. Officials — Competitions — Holding of an open competition — Languages of participation in tests — Equal treatment — Judicial review — Scope (Staff Regulations, Arts 1d, and 28(f), and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1) (see paras 88, 89)

7. Actions brought by officials — Judgment annulling a measure — Effects — Annulment of a notice of open competition — Legitimate expectations of the candidates selected — Results of the competition not called into question (Art. 266 TFEU; Staff Regulations, Art. 91) (see para. 133)

Re:

APPLICATION for annulment of notice of open competition EPSO/AD/249/13 to draw up two reserve lists for administrators to fill vacant posts in the fields of macroeconomics and financial economics (OJ 2013 C 75 A, p. 1).

Operative part

The Court:

1. Annuls the notice of open competition EPSO/AD/249/13 to draw up two reserve lists for administrators to fill vacant posts in the fields of macroeconomics and financial economics;

2. Orders the European Commission to bear, in addition to its own costs, those incurred by the Italian Republic;
1.

Community 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 OHIM bodies — Not included (Council Regulation No 207/2009, Art. 65) (see para. 24)
Common foreign and security policy—Restrictive measures against Belarus—Freezing of funds—Rights of defence—Notification of inculpatory evidence—Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures—No new grounds—No infringement of the right to be heard

(Council Decisions 2013/534/CFSP and 2014/750/CFSP; Council Regulations No 1054/2013 and No 1159/2014)

(see paras 47-51, 59, 60)
The second subparagraph of Article 4(3) of Regulation No 211/2011 on the European citizens’ initiative, which provides that the Commission is to inform the organisers of the reasons for any refusal to register a proposed European citizens’ initiative (ECI), gives specific expression to the obligation to state reasons in so far as citizens’ initiatives are concerned under the second paragraph of Article 296 TFEU. In that regard, since the fact that a proposal for an ECI is not registered may impinge upon the very effectiveness of the right of citizens to submit a citizens’ initiative that is enshrined in the first paragraph of Article 24 TFEU, such a decision must disclose clearly the grounds justifying the refusal. The citizen who has submitted a proposal for an ECI must be placed in a position to understand the reasons why it was not registered by the Commission, so that it is incumbent on the Commission, when it receives such a proposal, to appraise it and also to state the different reasons for any refusal to register it, given the effect of such a refusal on the effective exercise of the right enshrined in the Treaty. That follows from the very nature of this right which, as is pointed out in recital 1 of Regulation No 211/2011, is intended to reinforce citizenship of the Union and to enhance the democratic functioning of the European Union through the participation of citizens in its democratic life.

The Commission fails in its duty to state reasons if it does not indicate, in a decision refusing registration for non-compliance with the condition under Article 4(2)(b) of Regulation No 211/2011, those of the measures which, amongst those set out in the annex to a proposal for an ECI, do not fall within its competence or the grounds in support of that conclusion. Where the Commission acts in that way, the organisers are not placed in a position to be able to identify those of the proposals formulated which, according to the Commission, fall outside the framework of its powers, within the meaning of Article 4(2)(b) of Regulation No 211/2011, or to know the reasons which led to that assessment and, therefore, are prevented from challenging the merits of that assessment, just as the Court is prevented from exercising its review of the legality of the Commission’s assessment. Moreover, failing any complete statement of reasons, the possible introduction of a new proposed ECI, taking into account the Commission’s objections on the admissibility of certain proposals, would be seriously compromised, as would also be the achievement of the objectives, referred to in recital 2 of Regulation No 211/2011, of encouraging participation by citizens in democratic life and of making the European Union more accessible.

(see paras 15, 17, 18, 29, 34)
27

Lastly, the Italian Republic asserts, in its second plea, that, ‘as demonstrated in the first plea, the conditions laid down in [Article 3(2) of Regulation No 1535/2007] have not been met’, that, ‘[t]here is no evidence that the contested measure resulted in a total amount of aid granted that exceeds the ceiling referred to in [that article]’ and that ‘[t]here are, on the contrary, data which show precisely the opposite’ (paragraph 52 of the application). However, the Italian Republic fails to put forward, in the context of the present action, or demonstrate that it put forward, in the context of the administrative procedure, arguments or evidence which would make it possible to consider, or even merely to verify, that it has not granted other de minimis aid resulting in the ceiling set by that provision being exceeded, as the Commission rightly points out. On the contrary, in response to the questions raised by the General Court by way of measures of organisation of procedure, and then at the hearing, the Italian Republic merely submits, in essence, that the aid resulting from the deferral of payment is of such minimal significance that it should be presumed that the ceiling at issue was not exceeded. Such an argument cannot succeed, in the absence of any information relating to other aid from which the milk producers concerned may have benefitted and given the evidential requirements arising from the case-law (see paragraphs 17 and 18 above) and the combined provisions of Article 3(1) and (2) and of Article 4(6) of Regulation No 1535/2007.
10

The operative part of the contested decision reads as follows: ‘Article 1 The aid amounting to EUR 31 million which [the French Republic] plans to grant to FagorBrandt is compatible with the internal market subject to the conditions laid down in Article 2. Article 2 1. The French authorities shall suspend payment to FagorBrandt of the aid referred to in Article 1 of this Decision until such time as the recovery from FagorBrandt of the incompatible aid referred to in Commission Decision 2004/343/EC of 16 December 2003 has become effective. 2. FagorBrandt’s restructuring plan, as communicated to the Commission by [the French Republic] on 6 August 2007, must be implemented in full. 3. FagorBrandt’s own contribution to the cost of restructuring, which FagorBrandt proposes should be EUR 31.5 million, must be increased by EUR 3190878.02 plus the interest on that sum running from the date on which the Italian aid was put at FagorBrandt’s disposal until 21 October 2008. That increase must take place before the end of the period of restructuring of the undertaking, which has been set at 31 December 2012. The French authorities must produce evidence of this increase within two months after 31 December 2012. 4. FagorBrandt shall cease marketing refrigeration, cooking and dishwashing products of the Vedette brand for a period of eight years. 5. In order to ensure that the conditions laid down in paragraphs 1 to 4 of this Article are observed, [the French Republic] shall inform the Commission, by means of annual reports, of progress with the restructuring of FagorBrandt, the recovery of the incompatible aid described in paragraph 1, the payment of the compatible aid, and the implementation of the compensatory measures. Article 3 [The French Republic] shall inform the Commission within two months of the date of notification of this decision of the measures it has taken to comply with it. Article 4 This Decision is addressed to the French Republic.’
1

Article 36 of the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty of the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21; ‘the Act of Accession’), annexed to the Treaty between the Member States of the European Union and the Republic of Croatia concerning the accession of the Republic of Croatia to the European Union (OJ 2012 L 112, p. 10; ‘the Treaty of Accession’), stipulates: ‘1. The Commission shall closely monitor all commitments undertaken by Croatia in the accession negotiations, including those which must be achieved before or by the date of accession. The Commission’s monitoring shall consist of regularly updated monitoring tables, dialogue under the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part … peer assessment missions, the pre-accession economic programme, fiscal notifications and, when necessary, early warning letters to the Croatian authorities. In the autumn of 2011, the Commission shall present a Progress Report to the European Parliament and the Council. In the autumn of 2012, it shall present a Comprehensive Monitoring Report to the European Parliament and the Council. Throughout the monitoring process, the Commission shall also draw on input from Member States and take into consideration input from international and civil society organisations as appropriate. The Commission’s monitoring shall focus in particular on commitments undertaken by Croatia in the area of the judiciary and fundamental rights (Annex VII), including the continued development of track records on judicial reform and efficiency, impartial handling of war crimes cases, and the fight against corruption. … As an integral part of its regular monitoring tables and reports, the Commission shall issue six-monthly assessments up to the accession of Croatia on the commitments undertaken by Croatia in these areas. 2. The Council, acting by qualified majority on a proposal from the Commission, may take all appropriate measures if issues of concern are identified during the monitoring process. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted by the Council, acting in accordance with the same procedure, when the relevant issues of concern have been effectively addressed.’
125

In that regard, it should be observed that, first of all, Article 1 of Law No 222 of 20 May 1985 provides that ecclesiastical institutions having their seat in Italy and pursuing a religious activity may be recognised as legal persons governed by civil law. Next, the third paragraph of Article 2 of that law provides that the religious aim must be set out in the act establishing the institution and be essential to the institution. Furthermore, Article 16 of that law states that commercial or for-profit activities cannot in any event be considered to be religious activities. Last, Article 19 of that law, read in conjunction with Article 13 of the decreto del Presidente della Repubblica del 13 febbraio 1987, n. 33 (Decree No 33/1987 of the President of the Republic of 13 February 1987), provides that, in the event of a change in the purpose for which the assets are employed and the means of existence of an ecclesiastical institution recognised under civil law, leading to the loss of one of the necessary conditions of its recognition, that recognition is to be revoked on a proposal of the Interior Minister, and by decree of the President of the Republic, after the ecclesiastical institution has been heard and the Consiglio di Stato (Italian Council of State) has given its opinion. It should be added that, following the adoption of the legge del 12 gennaio 1991, n. 13 (Law No 13 of 12 January 1991), the Decree of the President of the Republic provided for in Article 19 of Law No 222 of 20 May 1985 is no longer necessary for the revocation of the civil status of the ecclesiastical institutions, which is now within the competence of the Interior Minister.
65

It should be noted that among the information collected by OLAF and included in DG Information Society’s final audit report, the information mentioning the applicant’s name in the context of banking transactions carried out between 2002 and 2006 in Comeng’s name at the applicant’s request was necessary in order to demonstrate that those banking transactions were not connected with the performance of FP6 contracts concluded for the implementation of the Sixth Framework Programme. The audit report also mentions the applicant’s name in the context of financial transactions conducted in the same period in favour of other companies owned or controlled by him and states that he did not demonstrate that those transactions occurred in the context of the performance, by Zenon, of contracts concluded for the implementation of the Sixth Framework Programme. Such information also proved necessary in order to provide proof of the lack of a connection between those transactions and the performance of the FP6 contracts by Zenon. Furthermore, it is apparent from the audit report that it was the applicant who decided to resort to Comeng in order to deliver the invoices to Zenon and to conduct the banking transactions between the latter and Comeng. It must be stated that that information may be deduced from the email of 29 September 2010, sent by the applicant himself to the new director of Zenon and to the Commission by the new shareholders of that company. The applicant indicated therein that resort had been had to Comeng in order to inflate profits by 10% without the company suffering any losses. That data thus enabled the Commission to confirm that the resort to Comeng in the context of the performance of the contracts concluded for the implementation of the Sixth Framework Programme was not an ‘error’, but was instead quite deliberate, to reject the argument that a mere miscalculation had been made, consequently to set aside Zenon’s proposal in its email of 18 October 2010 for a mere adjustment to the calculation of the personnel costs and, therefore, to justify the scope of the financial adjustment made in respect of Zenon. It is therefore not apparent that the transmission to Zenon of that information via the audit report was not consistent with Article 5 of Regulation No 45/2001. …
Judgment of the General Court (Third Chamber) of 14 January 2015 — Melt Water v OHIM (Shape of a transparent cylindrical bottle)

(Case T‑70/14)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of a transparent cylindrical bottle — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Exclusion (Council Regulation No 207/2009, Art. 65(6)) (see para. 11)

2. Community trade mark — Definition and acquisition of the Community 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 17-23)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Shape of a transparent cylindrical bottle (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 25, 28, 31, 33, 34, 37)

4. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see para. 39)

5. Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Earlier registration of the mark in certain Member States or third countries — Decisions not binding EU bodies (Council Regulation No 207/2009) (see paras 43, 44)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 26 November 2013 (Case R 481/2013-5), concerning an application for registration of a three-dimensional sign comprising the shape of a transparent cylindrical bottle as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;