Summaries of judgments

 

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)
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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

Link: http://curia.europa.eu/juris/document/document.jsf;jsessionid=7B33A741BDC26F1AC10417E8B24C5012?text=&docid=215208&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3595544

1. Facts

In 2014, the European Union Intellectual Property Office (EUIPO) registered, in favour of adidas, the following EU trade mark for clothing, footwear and headgear:

asdasdasd
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.

2. Decision

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.
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Summaries of judgments

 

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  (Third Chamber) of the 14th of May 2019, T-795/17, C. Moreira/EUIPO (Neymar)

http://curia.europa.eu/juris/document/document.jsf;jsessionid=2F7E92B2A7F19F8025819B84B2292322?text=&docid=214045&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8873348)

EU trade mark — Invalidity proceedings — EU word mark NEYMAR — Declaration of invalidity — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001

1. Facts

In December 2012, Mr C Moreira filed an application for registration of the word sign ‘NEYMAR’ as a EU trade mark, in respect of clothing, footwear and headgear. The mark was registered in April 2013.

In February 2016, Mr Neymar Da Silva Santos Júnior, filed an application with EUIPO for a declaration of invalidity against that mark in respect of all the goods covered by it. The application for a  declaration of invalidity was upheld by EUIPO.

Mr Moreira then brought an action before the General Court against the decision of EUIPO.

2. Decision

The Court begins to note that  it is demonstrate that Mr Neymar Da Silva Santos Júnior was already known in Europe at the relevant date and was already recognised as a very promising football player, having drawn the attention of top-flight clubs in Europe in view of future recruitment, several years before his actual transfer.

The Court also confirms that Mr Moreira possessed more than a little knowledge of the world of football, as proven by the fact that he filed an application for registration of the word mark ‘IKER CASILLAS’, a mark corresponding to the name of another famous football player, on the same day he sought registration of the mark ‘NEYMAR’.
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Editorial of July 2017

Machine Life Speed Curb Gear Mechanics

by Maria José Costeira, Portuguese Judge at the General Court of the CJEU

The transposition of the Private Enforcement Directive: a critical perspective

On 26th November 2014 the Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union was approved. That directive, usually called Directive Enforcement, has to be transposed into national law by Member States until the 27th December 2016 (Article 21).

In Portugal, the National Competition Authority (Autoridade da Concorrência – AdC) entity in charge of preparing the transposition, presented, on the 22nd June 2016, the last proposal of a preliminary draft[i] for the transposition, which resulted from a process of public discussion.

Here, I intend to draw attention to some aspects that could be improved in the proposal.

Article 2 of the proposal gives the definition of cartel as “the agreement or concerted action between two or more competing companies which aims at coordinating their competition behaviour in the market or influencing the relevant competition standards through acts such as, namely, fixing or coordinating the prices of acquisition or sell or other conditions of transactions, including in relation to rights of intellectual property, attribution of production or sell quotas, sharing markets and clients, including the concertation in auctions and public procurements, restricting importations or exportations or conducting anti-competitive acts against other competitors as prohibited by Article 9 of the Law nº. 19/2012, of 8th May, and if applicable by Article 101, TFEU”.

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