Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
Judgment of the General Court (Ninth Chamber, Extended Composition), T‑307/17 – Adidas Ag / Euipo (Three Parallel Stripes), 19 June 2019
EU trade mark — Invalidity proceedings — EU figurative mark representing three parallel stripes — Absolute grounds for invalidity — No distinctive character acquired through use — Article 7(3) and Article 52(2) of Regulation (EC) No 207/2009 (now Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001) — Form of use unable to be taken into account — Form that differs from the form under which the mark has been registered by significant variations — Inversion of the colour scheme
In 2014, the European Union Intellectual Property Office (EUIPO) registered, in favour of adidas, the following EU trade mark for clothing, footwear and headgear:
In its application for registration, adidas had described the mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction.
In 2016, following an application for declaration of invalidity filed by the Belgian undertaking Shoe Branding Europe BVBA, EUIPO annulled the registration of that mark on the ground that it was devoid of any distinctive character, both inherent and acquired through use. According to EUIPO, the mark should not have been registered. In particular, adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU.
The General Court (GC) upholds the annulment decision, dismissing the action brought by adidas against the EUIPO decision.
The GC notes that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark, and that the forms of use which fail to respect the other essential characteristics of the mark, such as its colour scheme (black stripes against white background), cannot be taken into account. Therefore, EUIPO was correct to dismiss numerous pieces of evidence produced by adidas on the ground that they concern other signs, such as, in particular, signs for which the colour scheme had been reversed.
Finally, the GC notes that EUIPO did not commit an error of assessment in finding that adidas had not proved that the mark at issue had been used throughout the territory of the European Union and that it had acquired, in the whole of that territory, distinctive character following the use which had been made of it. From the evidence produced by adidas, the only evidence which is, to some extent, relevant relates to only five Member States and cannot, in the present case, be extrapolated to the entire territory of the EU.
Judgment of the General Court (Sixth Chamber), T‑399/17, John Dalli / Commission, 6 June 2019
Non-contractual liability — Investigation by OLAF — Sufficiently serious breach of a rule of law conferring rights on individuals — Non-material damage — Causal link
By judgment of 12 May 2015, the General Court (GC) dismissed the action brought by Mr John Dalli, former European Commissioner, seeking annulment of the ‘oral decision of 16 October 2012 of termination of [his] office … with immediate effect, taken by the President of the Commission’ and for compensation for damage of 1 symbolic euro for non-material damage and, on a provisional basis, of €1,913,396 for material damage.
By order of 14 April 2016 , the Court of Justice dismissed the appeal brought by Mr Dalli against that judgment. Mr Dalli brought another action before the GC for compensation for the damage, in particular non-material damage, caused to him, principally, by the alleged unlawful conduct of the Commission, including OLAF (the European Anti-Fraud Office), connected with the termination of his office as a Member of the Commission, with immediate effect, on 16 October 2012.
The Court dismisses the action considering that Mr Dalli has not shown the existence of unlawful conduct on the part of OLAF or the Commission and has not established the existence of a sufficiently direct causal link between the conduct complained off and the alleged damage, or even the existence of the latter.
The GC examines, first of all, the plea of inadmissibility raised by the Commission as a result of the force of res judicata of the judgment of 12 May 2012 and holds that it does not follow from that judgment that the points of law and of fact relating to OLAF’s unlawful conduct alleged in the first action were actually or necessarily settled and that that judgment therefore does not have, in that regard, the force of res judicata.
As regards the substance, the GC notes next, as a preliminary point, that the non-contractual liability of the European Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, namely the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of.
The GC carries out an examination of the complaints concerning the unlawfulness of the conduct of the institutions while noting that in order to satisfy the condition relating to the unlawfulness of the conduct alleged of the institutions, the case-law requires there to have been a sufficiently serious breach of a rule of law intended to confer rights on individuals. In that context, the GC rejects each of the seven complaints put forward by Mr Dalli concerning the unlawfulness of OLAF’s conduct. Those complaints alleged, inter alia, the unlawfulness of the decision to open an investigation, flaws in the characterization of the investigation and the unlawful extension of it, the breach of the principles governing the gathering of evidence and distortion and falsification of the evidence, an infringement of the rights of the defense and of the principle of presumption of innocence and of the right to the protection of personal data.
The GC next rejects the two complaints put forward by Mr Dalli concerning the unlawfulness of the Commission’s conduct. Those complaints alleged, firstly, the violation of the principle of sound administration and of the duty to behave in a loyal, impartial and objective manner and to respect the principle of independence, and, secondly, the violation of OLAF’s independence.
The GC concludes that Mr Dalli fails to show the existence of unlawful conduct on the part of OLAF or the Commission. By way of an examination for the sake of completeness, the GC also concludes that Mr Dalli does not establish the existence of a sufficiently direct causal link between the conduct complained of and the damage alleged, or even the existence of the latter. Mr Dalli’s action is therefore dismissed.