ddrg/super_eurlex huggingface dataset:
114

As regards, in the second place, the scope of the demarcation agreement, it must, as a preliminary point, be stated that the contested decision is marred by material inaccuracies inasmuch as the Board of Appeal stated, in paragraphs 41 and 42 of the contested decision, that the applicant had neither claimed nor proved that the demarcation agreement also included EU trade marks and that it had not been established that that agreement also covered sales territories situated outwith Germany. First, contrary to what is stated in paragraph 42 of the contested decision, the applicant rightly points out that it claimed in support of its request for suspension of 12 January 2017 that the demarcation agreement also related to EU trade marks. Consequently, the Board of Appeal erred in finding that the applicant had not made such a claim. Furthermore, the applicant is right in stating that it has proved that, since the form of order sought in the counter-claim for a declaratory judgment included EU trade marks in its wording. Secondly, and also in agreement with the applicant’s arguments, it must be pointed out that the Board of Appeal’s finding that it has not been established that the demarcation agreement also covers sales territories situated outwith Germany is irrelevant, since that finding does not necessarily make it possible to conclude that that agreement does not include EU trade marks. It cannot be ruled out a priori that the parties to the coexistence agreement are seeking to find a solution to the situation covered by the counter-claim for a declaratory judgment that the applicant has brought before the Landgericht Düsseldorf (Regional Court, Düsseldorf), namely the right to have trade marks, inter alia EU trade marks, registered with a view to use in areas which have been allocated to the applicant in that contract, even though those areas are confined to a single Member State. Since it is clear from the case-law of the Court of Justice that proof of genuine use of an EU trade mark does not necessarily have to be cross-border in scope (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 50), it is not, a priori, inconceivable that the parties to that agreement are seeking to register EU trade marks, even though, according to the terms in which the agreement is couched and at the time of registration, the use of those EU trade marks is envisaged in only one Member State. However, that incorrect assessment on the part of the Board of Appeal would result in the annulment of the contested decision only if the Board of Appeal’s examination as to the likelihood of success of the counter-claim for a declaratory judgment before the Landgericht Düsseldorf (Regional Court, Düsseldorf) and its finding that the applicant had not proved that the demarcation agreement conferred on it the right to use EU trade marks and have them registered proved to be incorrect themselves (see, to that effect, judgment of 30 November 2016, PALLADIUM PALACE IBIZA RESORT & SPA, T‑217/15, not published, EU:T:2016:691, paragraphs 36 and 50).
Judgment of the General Court (Ninth Chamber) of 19 December 2019 –

Vereinigung der Bayerischen Wirtschaft v EUIPO (eVoter)

(Case T‑175/19)

(EU trade mark — Application for EU word mark eVoter — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EU) 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 — Concept of characteristic (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 20-22)

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 — Word mark eVoter (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 30, 32, 38, 40, 41)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 11 January 2019 (Case R 1983/2018-5) relating to an application for registration of the word sign eVoter as an EU trade mark.

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 (European Parliament and Council Regulation 2017/1001, Art. 8,(1)(b)) (see para. 19)
Judgment of the General Court (Sixth Chamber) of 13 May 2020 –

Wonder Line v EUIPO — De Longhi Benelux (KENWELL)

(Case T‑284/19)

(EU trade mark — Opposition proceedings — Application for EU word mark KENWELL — Earlier EU word mark KENWOOD — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 20, 21, 48)

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 — Refusal to register where there is a relative ground for refusal, even if limited to part of the Union (European Parliament and Council Regulation 2017/1001, 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 — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 24)

4. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks KENWELL and KENWOOD (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 26-29, 40, 42, 46, 47, 51, 52)

5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 30, 31)

6. EU trade mark — Decisions of the Office — Legality — EUIPO's previous decision-making practice (European Parliament and Council Regulation 2017/1001) (see paras 53, 54)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 11 February 2019 (Case R 1351/2018-2), relating to opposition proceedings between De Longhi Benelux and Wonder Line.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Tenth Chamber) of 11 February 2020 –

Jakober v EUIPO (Shape of a cup)

(Case T‑262/19)

(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a cup — Inadmissibility of the appeal before the Board of Appeal)

EU trade mark — Appeals procedure — Persons entitled to appeal and to be parties to the proceedings — Persons whose claims are not upheld by a decision — Application for registration of an EU trade mark

(European Parliament and Council Regulation 2017/1001, Art. 67)

(see paras 25-27)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 11 February 2019 (Case R 1153/2018-4) relating to an application for registration of a three-dimensional sign consisting of the shape of a cup as an EU trade mark.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 February 2019 (Case R 1153/2018-4);
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Assessment of distinctiveness – Criteria

(Regulation 2017/1001 of the European Parliament and of the Council, Art. 7(1)(b))

(see paras 45, 51)
Judicial proceedings – Costs – Litigation concerning intellectual property rights – Recoverable costs – Costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal

(Rules of Procedure of the General Court, Art. 190(2))

(see paras 87-90)
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 – Account taken by the General Court of matters of law and fact not previously raised before the departments of EUIPO – Precluded

(European Parliament and Council Regulation 2017/1001, Art. 72; Rules of Procedure of the General Court, Art. 188)

(see paras 18, 19)
EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU – Recourse by the Board of Appeal to implicit reasoning – Whether permissible – Conditions

(Art. 296 TFEU; European Parliament and Council Regulation 2017/1001, Arts 71(1) and 94(1), first sentence)

(see paras 19-21)
European Union trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Meaning – Criteria for assessment

(European Parliament and Council Regulation 2017/1001, Art. 18(1)(2)(b), Art. 47(2) and (3), Art. 58(1)(a); Commission Regulation No 1868/95, Art. 1, Rule 22)

(see paras 37-40, 43-46)
Judicial proceedings – Time limit for producing evidence – Article 85(3) of the Rules of Procedure of the General Court – Scope

(Rules of Procedure of the General Court, Arts 85(3) and 92(7))

(see para. 30)
Judgment of the General Court (Third Chamber) of 18 November 2020 –

Topcart v EUIPO – Carl International (TC CARL)

(Case T‑378/19)

(EU trade mark – Opposition proceedings – Application for EU word mark TC CARL – Earlier national figurative mark CARL TOUCH – 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 – 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 – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 23)

2. Acts of the institutions – Temporal application – Application of the substantive law in force at the time of the application for the registration of a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 27)

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 – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28-31, 77, 83, 86)

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 mark TC CARL and figurative mark CARL TOUCH (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 50, 53, 74, 80, 89, 95)

5. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 44-47, 59-62, 64)

6. EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Weak distinctive character of the earlier mark – Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 78)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 2 April 2019 (Case R 1617/2018-2), relating to opposition proceedings between Carl International and Topcart.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Overlap of the scope of the grounds set out in Article 7(1)(b) and (c) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see paras 47, 48)
EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation No 2017/1001 – Scope identical to that of Article 296 TFEU

(Art. 296 TFEU; Regulation of the European Parliament and of the Council 2017/1001, Art. 94(1), first sentence)

(see paras 27, 28)
Judicial proceedings – Representation of the parties – Documents confirming the authorisation of the Applicant’s representative to practice before a court of a Member State or a State which is a party to the Agreement on the European Economic Area– Need for translation into the language of the proceedings – None

(Rules of Procedure of the General Court, Arts 46(2) and 51(2))

(see paras 21, 22)
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Mark devoid of distinctive character – Exception – Distinctive character acquired through use – Trade mark devoid of distinctive character throughout the EU – Acquisition of that character in part of the Union – Insufficient

(Council Regulation No 207/2009, Art. 7(1)(b) to (d) and (3))

(see paras 83-86, 89)
Judgment of the General Court (Seventh Chamber) of 24 March 2021 –

BK v EASO

(Case T‑277/19)

(Civil service – Temporary agents – Temporary reassignment – Action for annulment – Purely confirmatory measure – Inadmissibility – Explicit decision rejecting the complaint – Autonomous scope – Suspension of the effects of the decision subject to the complaint – Interest in bringing proceedings – Action for damages – Close link to the claim for annulment – No pre-litigation procedure – Inadmissibility)

1. Actions brought by officials – Act adversely affecting an official – Definition – Measures producing binding legal effects – Decision granting an official the right to a temporary extension of a reassignment – Not included (Staff Regulations of Officials, Arts 90 and 91) (see paras 52, 95, 96)

2. Judicial proceedings – Measures of organisation of procedure – Request for production of documents – Declaration of the requested party as to his or her inability to produce the document – Presumption of veracity – Rebuttable on the basis of relevant and consistent evidence (see paras 60-64, 66)

Re:

Application under Article 270 TFEU seeking, first, annulment of the decision of EASO of 20 September 2018 to assign the applicant to Malta from 1 November 2018, of the implied decision rejecting the complaint directed against that decision and of the decision of EASO of 6 June 2019 explicitly rejecting that complaint and, second, compensation for the material and non-material damage allegedly suffered by the applicant following that latter decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders BK to bear half of her own costs;
European Parliament – Members – Payment of expenses and allowances – Parliamentary assistance allowances – Defrayal of expenses not linked to the exercise of a parliamentary mandate – Not included

(Decision of the Bureau concerning implementing measures for the Statute for Members of the European Parliament, Art. 33(2), first sentence)

(see para. 48)
Judgment of the General Court (Ninth Chamber) of 14 July 2021 –

Victoria’s Secret Stores Brand Management v EUIPO – Yiwu Dearbody Cosmetics (BODYSECRETS)

(Case T‑810/19)

(EU trade mark – Invalidity proceedings – EU figurative mark BODYSECRETS – Absolute grounds for refusal – No distinctive character – Descriptive character – Customary nature – Article 7(1)(b), (c) and (d), and Article 52(1)(a) of Regulation (EC) No 207/2009 (now Article 7(1)(b), (c) and (d), and Article 59(1)(a) of Regulation 2017/1001))

1. EU trade mark – Decisions of the Office – Legality – The Office’s previous decision-making practice – Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see para. 32)

2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Concept – Criteria for assessment (Council Regulation No 207/2009, Arts 7(1)(b) and 52(1)(a)) (see paras 36, 37, 60, 61)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Marks consisting of advertising slogans – Distinctive character – Criteria for assessment (Council Regulation No 207/2009, Arts 7(1)(b) and 52(1)(a)) (see paras 38-42)

4. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks devoid of distinctive character – Figurative mark BODYSECRETS (Council Regulation No 207/2009, Arts 7(1)(b) and 52(1)(a)) (see paras 63-65, 67)

5. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Concept (Council Regulation No 207/2009, Arts 7(1)(c), (2) and 52(1)(a)) (see paras 73-75)

6. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Figurative mark BODYSECRETS (Council Regulation No 207/2009, Arts 7(1)(c) and 52(1)(a)) (see paras 79, 83)

7. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications which have become customary in everyday language or commerce – Concept (Council Regulation No 207/2009, Arts 7(1)(d) and 52(1)(a)) (see paras 87, 90)

8. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications which have become customary in everyday language or commerce – Customary character – Criteria for assessment (Council Regulation No 207/2009, Arts 7(1)(d) and 52(1)(a)) (see paras 88, 89)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 5 September 2019 (Case R 2422/2018-5) relating to invalidity proceedings between Victoria’s Secret Stores Brand Management and Yiwu Dearbody Cosmetics.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (First Chamber) of 16 June 2021 –

RA v Court of Auditors

(Case T‑867/19)

(Civil service – Officials – Promotion – 2016 promotion exercise – Decision not to promote the applicant to grade AD 11 – Absence of staff report – Comparison of merits – Compliance with a judgment of the General Court – Adoption of a new decision not to promote – Obligation to state reasons – Article 45 of the Staff Regulations – Manifest error of assessment)

1. Actions brought by officials – Prior administrative complaint – Rejection decision – Account taken of the reasoning therein (Staff Regulations of Officials, Arts 90 and 91) (see para. 15)

2. Judicial proceedings – Introduction of new pleas during the proceedings – Amplification of a plea made earlier – Admissibility (Rules of Procedure of the General Court, Art. 84(1)) (see para. 18)

3. Actions brought by officials – Pleas in law – Inadequate statement of reasons – Finding made by the Court of its own motion (see para. 23)

4. Officials – Promotion – Complaint by a candidate not promoted – Rejection decision – Obligation to state reasons – Scope – Inadequate statement of reasons – Regularisation during the proceedings – Conditions (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Staff Regulations of Officials, Arts 25, second para., 45 and 90(2)) (see paras 25-27)

5. Officials – Promotion – Consideration of comparative merits – Procedures – Administration’s discretion – Limits – Respect for the principle of equal treatment – Judicial review – Limits – Manifest error of assessment – Meaning (Staff Regulations of Officials, Art. 45) (see paras 48-52, 54, 59, 64)

6. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Evidence capable of being taken into consideration – Languages exercised in the performance of the duties – Assessment in the light of the advantage afforded to the official concerned due to the use of languages in the context of his duties compared to all of the officials eligible for promotion – Whether permissible (Staff Regulations of Officials, Art. 45) (see paras 60, 61, 92)

7. Officials – Promotion – Candidates eligible for promotion – Right to promotion – None (Staff Regulations of Officials, Art. 45) (see para. 81)

8. Officials – Promotion – Criteria – Merits – Taking into account of the level of responsibilities exercised – Scope (Staff Regulations of Officials, Art. 45) (see para. 102)

9. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions (Art. 340, second para., TFEU) (see paras 140, 141)

Re:

Application under Article 270 TFEU seeking, first, annulment of the decision of 27 February 2019 by which the Court of Auditors decided not to promote the applicant to Grade AD 11 and, second, compensation for the damage which the applicant allegedly suffered as a result of that decision.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings – General Court seised under an arbitration clause – Insurance contract – ‘Construction all-risk’ insurance – Damage caused by rainwater to the European Parliament’s Konrad Adenauer building – Parliament’s claim for reimbursement of costs and for payment of the indemnity – Scope of the insurance – Exclusion clause – Concept of flooding

(Arts 256 and 272 TFEU; European Parliament and Council Directive 2007/60, Arts 1 and 2)

(see paras 77, 78, 81-96, 99-111)
EU budget – Financial Regulation – Administrative penalties which may be imposed by the Commission – Exclusion of an operator from a public procurement procedure – Absence of a final decision establishing that an economic operator is in breach of its contractual obligations – Included

(European Parliament and Council Regulation No 966/2012, as amended by Regulation 2015/1929, Arts 106(2) and 109(1)(b))

(see paras 76-78)