ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (First Chamber) of 12 October 2010 – Asenbaum v OHIM (WIENER WERKSTÄTTE)

(Joined Cases T-230/08 and T-231/08)

Community trade mark – Applications for Community word mark WIENER WERKSTÄTTE – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 33, 42-43)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 10 April 2008 (Cases R 1573/2006-4 and R 1571/2006-4) concerning two applications for registration of the word sign WIENER WERKSTÄTTE as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Paul Asenbaum Community trade mark sought: Word mark WIENER WERKSTÄTTE for goods in Classes 6, 11, 14, 16, 20, 21 and 34 (Application No 4133501) and goods in Class 14 (Application No 4207783) Decision of the examiner: Applications dismissed Decision of the Board of Appeal: Appeals dismissed





Operative part

The Court:

1. Orders that Cases T-230/08 and T-231/08 be joined for the purposes of the judgment;

2. Dismisses the actions;
Judgment of the General Court (Second Chamber) of 18 October 2011 – Gutknecht v Commission

(Case T-561/08)

Non-contractual liability – Health policy – Biocidal products – Establishment of a list of active substances on the market – Adoption of regulations by the Commission by virtue of Directive 98/8/EC – Causal link

Non-contractual liability – Conditions – Causal link – Damage suffered following allegedly unlawful adoption by the Commission of legislative provisions implementing Directive 98/8 – No direct causal link between the damage and those provisions (Art. 288, second para., EC) (see paras 24-25, 30-38, 40)

Re:

ACTION for damages seeking compensation for the loss suffered following the allegedly unlawful adoption by the Commission of various regulations pursuant to Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1) or, in the alternative, following the alleged failure by the Commission to adopt the measures necessary to ensure the right to protection of information supplied under that directive.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 23 September 2011 – NEC Display Solutions Europe v OHIM – C More Entertainment (see more)

(Case T-501/08)

Community trade mark – Opposition proceedings – Application for a Community figurative mark ‘see more’ – Earlier national word marks CMORE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

1. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 21-22, 58)

2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Weak distinctiveness of the earlier mark – Effect (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 57)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 28 August 2008 (Case R 1388/2007-4) relating to opposition proceedings between C More Entertainment AB and NEC Display Solutions Europe GmbH.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 28 February 2012 —

Grazer Wechselseitige Versicherung v Commission



(Case T‑282/08)

State aid — Aid granted by the Austrian authorities to the Grazer Wechselseitige group (GRAWE) in connection with the privatisation of Bank Burgenland — Decision declaring the aid to be incompatible with the common market and ordering its recovery — Private investor in a market economy test — Application where the State acts as vendor — Determination of the market price

1. State aid — Concept — Sale of an asset by a public body to a private person on preferential conditions — Included — Assessment according to the criterion of the private investor (Art. 87(1) EC) (see paras 45, 46)

2. State aid — Concept — Legal nature — Interpretation on the basis of objective factors — Judicial review –Scope (Art. 87(1) EC) (see paras 47, 48, 56)

3. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Distinguished from manifest error of assessment (Arts 230 EC and 253 EC) (see para. 68)

4. State aid — Concept — Assessment according to the criterion of the private investor — Transfer of an undertaking — Determination of a price — Preference to be given to the result of an open, transparent and unconditional tendering procedure rather than to an export report (Art. 87(1) EC) (see paras 76‑80, 86)

5. State aid — Concept — Assessment according to the criterion of the private investor — Transfer of an undertaking — Uncertain outcome and duration of an authorisation procedure not automatically implying the exclusion of a buyer by a private investor (Art. 87(1) EC) (see paras 88, 90, 100, 101)

6. State aid — Concept — Assessment according to the criterion of the private investor — Whether account to be taken, in determining the transfer price of an undertaking, of the risk represented by the existence of a statutory guarantee scheme benefiting the undertaking to be transferred — Not included (Art. 87(1) EC) (see paras 122, 128, 130, 131)

7. State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules of Article 88(3) EC — Legitimate expectations entertained by the recipients — Legal certainty — Protection — Conditions and limits (Art. 88(3) EC) (see paras 152, 153)

8. State aid — Prohibition — Exceptions — Aid to support or facilitate the economic development of certain regions or activities — Discretion of the Commission — Judicial review — Limits — Strict interpretation of derogations (Art. 87(3)(a) and (c) EC) (see paras 158, 161)

Re:

APPLICATION for annulment of Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32).

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 28, 33-34

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 30 October 2008 (Case R 963/2008-1), concerning an application to register the word sign LE GOMMAGE DES FACADES as a Community trade mark.

Information relating to the case

>lt>14

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Baid SARL to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Relative grounds for refusal

–

Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 20, 39-40

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 12 January 2009 (Case R 1266/2007-1), relating to opposition proceedings between adp Gauselmann GmbH and Archer Maclean.

Information relating to the case

>lt>23

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders adp Gauselmann GmbH to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Absolute grounds for refusal

–

Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 19, 25, 35

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 June 2009 (Case R 1157/2008‑4) concerning an application for registration of the figurative sign SAFELOAD as a Community trade mark.

Information relating to the case

>lt>8

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Oliver Hoelzer to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 46, 65-67)

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 (Council Regulation No 40/94, Art. 8(5)) (see paras 82-86, 92-101)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 February 2009 (Case R 60/2008-4), relating to opposition proceedings between Allergan Inc. and Farmeco AE Dermokallyntika.

Information relating to the case

>lt>4

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Farmeco AE Dermokallyntika to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Agriculture – EAGGF – Clearance of accounts – Definitive refusal to accept responsibility for certain expenses – Need for a prior inter partes procedure – Communication by the Commission of the results of verifications – Duty to submit an assessment of the expenses to be disallowed before communication of the results of the verifications – None – Infringement of defence rights – None (Commission Regulations Nos 1663/95, modified by Regulation No 2245/1999, Art. 8, and 885/2006, Art. 11) (see paras 39-40, 44-48, 50, 52)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision relating to the clearance of accounts in respect of expenditure financed by the EAGGF – Obligation respective of the mere fact of the close association of the addressee Member State with the process of establishing the decision (Art. 253 EC) (see points 56-57)

3. Agriculture – EAGGF – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Financial correction – Conditions – Existence of significant failure to act exposing the EAGGF to a real risk of loss (Council Regulations Nos 729/70 and 1258/1999, Art. 7(4)) (see paras 59-65)

4. Agriculture – Common agricultural policy – EAGGF financing – Disallowance of irregular expenses – Finding of failures in the control system implemented by a Member State – Blanket correction of 10% of expenses – Lawfulness – Conditions – Lack of sufficient control mechanisms – Breach of principle of proportionality – None (Commission Decision 2009/253) (see paras 70-73)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision 2009/253/EC of 19 March 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2009 L 75, p. 15), in so far as it excludes certain expenditure incurred by the Hellenic Republic in the context of the common organisation of the markets in the sugar sector.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Hellenic Republic to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Relative grounds for refusal

–

Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 28, 57-60

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 5 March 2009 (Case R 598/2008-2) relating to opposition proceedings between Miguel Bellido SA and Olymp Bezner GmbH & Co. KG.

Information relating to the case

>lt>5

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Olymp Bezner GmbH & Co. KG to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Actions for annulment – Pleas in law – Lack of or inadequate statement of reasons – Plea distinct from that of the lawfulness of the contested decision (Arts 230 EC and 253 EC) (see para. 31)

2. Economic and social cohesion – Structural assistance – Community financing – Breach of the prescribed conditions – Obligation of Member States to recover funds lost following abuse or negligence – Application of national law – Limits – Effectiveness of Community law (Art. 211 EC; Council Regulations Nos 2052/88, Art. 4(1), and 4253/88, Arts 23 and 24; Commission Regulation No 1681/94, Art. 5(2)) (see paras 47-49)

3. Economic and social cohesion – Structural assistance – Community financing – Obligation of Member States to monitor on a regular basis the actions financed – Competence of the Commission to find defects in the management and monitoring system at national level (Art. 274 EC; Council Regulation No 4253/88, Arts 23(1) and 24) (see paras 55-56, 58)

Subject of the case

Re:

ACTION for annulment in part of Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund (ERDF) within the framework of the single programming document No 97.07.13.003 coming under objective 2 for the Groningen-Drenthe region, granted in accordance with Commission Decision 97/711/EC of 26 May 1997.

Operative part

Operative part

The Court:

1. Dismisses the application;

2. Orders the Kingdom of the Netherlands to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Relative grounds for refusal

–

Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

–

Likelihood of confusion with the earlier mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25, 33-34, 57, 66-67

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1046/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

Information relating to the case

>lt>11

Operative part

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 September 2009 (Case R 1046/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

2. Dismisses the remainder of the action;

3. Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.
Although the concept of genuine use therefore excludes all minimal and insufficient use as the basis for a finding that a mark is being put to real and effective use on a given market, nevertheless the requirement of genuine use does not seek to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks.

According to case-law, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition of genuine use of the mark requires that that mark, as protected on the relevant territory, be used publicly and outwardly.

To assess whether a particular trade mark has been put to genuine use in a particular case, an overall assessment of the documents in the file must be carried out, taking account of all the relevant factors in the case. In such an assessment, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark.

As to the extent of the use to which the trade mark at issue has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use. That assessment entails a degree of interdependence of the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or regular, and vice versa.

However, the smaller the commercial volume of the exploitation of the mark, the more necessary it is for the proprietor of the mark to produce additional evidence to dispel any doubts as to the genuineness of its use.

Moreover, genuine use of a trade mark cannot be proven by means of probabilities or suppositions, but has to be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned.

(see paras 27-30)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Relative grounds for refusal

–

Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

–

Likelihood of confusion with the earlier mark (Council Regulation No 40/94, Art. 8(1)(b)) (paras 19-20, 39, 41-42

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 (Case R 515/2008-4) relating to opposition proceedings between Société de développement et de recherche industrielle and Ergo Versicherungsgruppe AG.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Ergo Versicherungsgruppe AG to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community trade mark

–

Relative grounds for refusal

–

Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

–

Likelihood of confusion with the earlier mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 37, 66, 70-72

)

Subject of the case

Re:

APPLICATION for annulment of the decision of the Second Board of Appeal of OHIM of 4 March 2009 (Case R 376/2008-2) concerning opposition proceedings between El Corte Inglés, SA, and COR Sitzmöbel Helmut Lübke GmbH & Co. KG.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders COR Sitzmöbel Helmut Lübke GmbH & Co. KG to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Agriculture – Common agricultural policy – EAGGF financing – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Challenge by the Member State concerned – Burden of proof – Allocation between the Commission and the Member State (Council Regulation No 1258/1999) (see para. 33)

2. Agriculture – Common agricultural policy – EAGGF financing – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Margin of discretion of the Commission – None (Council Regulation No 1258/1999) (see para. 44)

3. Agriculture – Common agricultural policy – EAGGF financing – Grant of aids and premiums – Obligation on Member States to organise an efficient system of administrative controls and spot checks – Failure to fulfil obligations – Justification on the basis of practical difficulties – Not permissible (Council Regulation No 1258/1999, Art. 8; Commission Regulation No 2111/2003, Art. 24) (see para. 45)

4. Agriculture – Common agricultural policy – EAGGF financing – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Finding of failures in the control system implemented by a Member State – Possibility of the Commission disallowing all the expenditure – Application of a flat-rate correction – Breach of principle of proportionality – None (Council Regulation No 1258/1999, Art. 7) (see para. 50)

Subject of the case

Re:

APPLICATION for annulment of Commission Decision 2009/721/EC of 24 September 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2009 L 257, p. 28), in so far as it excludes certain expenditure incurred by the Italian Republic in the sector of citrus‑fruit processing.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Italian Republic to pay the costs.