Judgment in Joined Cases C-449/18P EUIPO v Messi Cuccittini and C-474/18PJ.M.-E.V.e hijos v Messi Cuccittini
The Court of Justicedismisses the appeals brought by EUIPO and a Spanish company against the judgment of the General Court authorising footballplayer Lionel Messi to register the trade mark ‘MESSI’ for sports equipment and clothing
In August 2011, the footballer Lionel Andrés Messi Cuccittini filed an application with the European Union Intellectual Property Office (EUIPO) for registration of the following figurative sign as an EU trade mark, inter alia for sports and gymnastics clothing, footwear and equipment.
In November 2011, Mr Jaime Masferrer Coma filed a notice of opposition to the registration of the mark applied for by MrMessi Cuccittini, alleging a likelihood of confusion with the EU word marks MASSI, registered,inter alia,for clothing, footwear, cycling helmets, protective clothing and gloves (the rights to those marks were transferred in May 2012 to the Spanish company J.M.-E.V.e hijos).1In 2013, EUIPO upheld the opposition. MrMessi Cuccittini lodged an appeal with EUIPO against that decision. In April 2014, EUIPO dismissed the appeal, due, essentially, to a likelihood of confusion between the signs MASSI and MESSI. MrMessi Cuccittini then brought an action before the General Court of the European Union for annulment of EUIPO’s decision.2By its judgmentof 26April2018,3the General Court annulled that decision, considering that the footballplayer’s reputation counteracted the visual and phonetic similarities between the two signs and excluded any likelihood of confusion.
EUIPO and the company J.M.-E.V.e hijos lodged appeals against the judgment of the General Court.
In today’s judgment, the Court of Justice dismisses both appeals.
Enlace al comunicado completo: https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-09/cp200108es.pdf
Tribunal de Justicia de la Unión Europea
COMUNICADO DE PRENSA n.º108/20
Luxemburgo, 17 de septiembre de 2020
Sentencia en los asuntos acumulados C-449/18P, EUIPO/Messi Cuccittiniy C-474/10P, J.M.-E.V.e hijos/Messi Cuccittini
El Tribunal de Justicia desestima los recursos interpuestos por la EUIPO yporuna sociedad española contra la sentencia del Tribunal General que autorizóal jugador de fútbol Lionel Messi a registrar la marca «MESSI» para artículos y prendas de vestir deportivosEn agosto de 2011,el jugador de fútbolLionel Andrés Messi Cuccittini presentó ante la Oficina de Propiedad Intelectual de la Unión Europea (EUIPO)una solicitud de registro como marca de la Unión Europea del signo figurativo que se reproduce a continuación, entre otros productos, para prendas de vestir, calzado y artículos de gimnasia y deporte:
En noviembre de 2011,el Sr.Jaime Masferrer Coma formuló oposición al registro de la marca solicitada por el Sr.Messi Cuccittini, invocando la existencia de un riesgo de confusión con las marcas denominativas de la Unión MASSI, registradas, entre otros productos, para prendas de vestir, calzado, cascos para ciclistas, trajes de protección y guantes (los derechos sobre estas marcas fueron transferidos, en mayo de 2012, a la sociedad española J.M.-E.V. e hijos).1En 2013 la EUIPO estimó la oposición. El Sr.Messi Cuccittini interpuso ante la EUIPO un recurso contra la resolución dictada.En abril de 2014,la EUIPO desestimó el recurso, por considerar,esencialmente, que existía riesgo de confusión entre las marcas MASSI yMESSI. El Sr.Messi Cuccittini interpuso entonces recurso ante el Tribunal General de la Unión Europea, solicitando la anulación de la resolución de la EUIPO.2Mediante su sentencia de 26 de abril de 2018, (...)
The ‘Children deprived of parental care found in an EU Member State other than their own’ guide is now available in twelve EU languages: Bulgarian, Croatian, Dutch, English, French, German, Greek, Hungarian, Italian, Polish, Romanian and Spanish
The guide provides practical suggestions on how to identify, refer and support children who are found in need of protection, without parental care, in another EU Member State. It elaborates on how to implement principles such as the right to be heard and how to ensure cihldren’s best interests when deciding on durable solutions.
The guide provides practical information to enhance national and transnational cooperation. Professionals, such as law enforcement and judicial authorities, social workers, health professionals, child protection officers, guardians, judges, lawyers, and authorities defining procedures and protocols, can benefit from this guidance.
FRA and the European Commission’s anti-trafficking Coordinator produced the guide.
In July 2020, an official complaint about the use of the European Structural and Investment Funds (ESI Funds) was submitted to the European Commission. It concerned the building of institutions for persons with disabilities in Austria, co-funded by the European Agricultural Fund for Rural Development (EAFRD). The complaint was submitted by Independent Living Austria (ILA), in cooperation with the European Network on Independent Living (ENIL).
The complainants found evidence of six residential facilities, as well as two sheltered workshops, which have been recently built and co-funded by EAFRD in Upper Austria. All eight facilities are aimed exclusively at groups of persons with disabilities and can be briefly characterised as follows:
A living unit accommodating persons with high support needs, situated in a large residential facility with about 200 places for children and adults with disabilities.
A residential facility, accommodating 3 groups of 7, with a total capacity of 21 persons with disabilities. A sheltered workshop with 32 places for persons with physical and intellectual disabilities, located in the same building as the residential facility.
A residential facility for 20 persons with disabilities.
A residential facility for 12 persons with disabilities, mostly with autism.
Two residential facilities for 16 persons with physical and intellectual disabilities.
A sheltered workshop with 24 places for persons with physical and intellectual disabilities.
Sheltered workshops as a substitute for employment in the regular labour market
Sheltered workshops for the occupation of young people and adults with disabilities are considered as segregating and discriminatory for the following reasons:
Persons with disabilities are not properly employed in sheltered workshops and only receive small pocket money for their work.
They neither have independent social security nor employment protection, contrary to non-disabled persons who work in sheltered workshops as attendants and carers.
Transfers from sheltered workshops into the regular labour market scarcely occur.
Data on persons with disabilities in sheltered workshops is not included in general labour market statistics in Austria and makes this group invisible.
In a similar vein, the Austrian Disability Ombudsman, who is the competent national equality body with regard to disability-based discrimination on the federal level, has also repeatedly voiced criticism over certain aspects of occupation in sheltered workshops.
In the complaint to the European Commission sent by ILA and ENIL mentioned above, it is argued that the investment into new sheltered workshops contradicts Council Directive 2000/78/EC on equal treatment in employment and occupation, which protects persons with disabilities from discrimination. The directive requires that reasonable accommodation is provided to enable persons with disabilities to “have access to, participate in, or advance in employment”. Thus, instead of building new segregating and parallel facilities for the occupation of persons with disabilities, community-based services to support their inclusion into the regular labour market should have been established.
Segregation in special living facilities
The same applies to facilities where only groups of persons with disabilities are intended to live. Although special living facilities for smaller or larger groups of persons with disabilities are still common in many European countries, this model of supporting and caring for persons with disabilities bears a high risk of segregation and social isolation. Institutional settings force persons with disabilities to live and work in groups, for the sole reason of having disabilities, where they must adapt to predefined conditions and regulations. Identical activities in the same place are carried out by a group of persons under the authority of the institution. A recently published study from Austria clearly indicates that persons with disabilities who live and/or work in institutions have reduced contacts with the outside world, which strongly indicates the isolating effect of institutional settings.
The Austrian Ombudsman Board (AOB), which has a mandate to protect and promote human rights, continues to criticise the lack of community-based and individualised services in Austria. In a report to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) the AOB states that “usually individual needs and wishes can be better addressed in community-based accommodations.” It “observed on several occasions massive restrictions of self-determination and privacy, the repeated use of derogatory language, sanction systems with the aim of absolute submission, social isolation as well as conditions which did not counter neglect.” In institutions, “clients often lack social contact with the outside world and move in closed social circles.” Finally, the AOB assumes “that it is not fully accepted in Austria that persons with disabilities should individually be able to choose a way of living, which is suitable for them, and have to receive the necessary support and services to do so.”
Combining living facilities and a sheltered workshop in one building must be considered a so-called ‘total institution’. Such conditions produce an even higher risk of social isolation, violence and vulnerability for persons with disabilities. This is the case with one of the projects co-funded by EAFRD in Upper Austria.
Lack of Personal Assistance and other community-based services
There is a lack of individualised, person centred and mobile support services for boys and girls, as well as for men and women with disabilities in Austria. The Disability Ombudsman has emphasized repeatedly that Personal Assistance is an absolutely essential service for the full and equal participation of all persons with disabilities in society. Thus, a lack of such services is likely to result in a high risk of multiple disadvantages for persons with disabilities. More simply put: without individualised support, persons with disabilities often cannot decide independently when to get up in the morning and when to go to sleep at night. In institutions, there is typically a rigidity of routine, which does not respect personal will and preferences of individuals.
The living facilities, as well as the sheltered workshops that were co-funded by the EU, perpetuate the segregation and social exclusion of persons with disabilities in Austria. This is in breach not only of the above mentioned Council Directive 2000/78/EC, but also the EU Charter of Fundamental Rights, the European Social Pillar and, last but not least, the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which was ratified by both the European Union and Austria.
There is mounting jurisprudence in support of the prohibition of investing ESI Funds into segregating services, under the CRPD. In April 2020, the CRPD Committee published the results of an inquiry into implementation of Article 19 CRPD in Hungary and made a number of recommendations. It emphasized the need to exclude any form of building or refurbishment of institutions or group homes from eligibility for EU funding.
Conclusion
According to Article 26 of the EU Charter on Fundamental Rights, “[t]he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” Article 7 of the Common Provisions Regulation on ESI Funds states that “the Commission shall take appropriate steps to prevent discrimination”, including that based on disability, during the preparation and the implementation of an ESI programme.
Despite this, Austria and other Member States continue to build and renovate institutions for persons with disabilities. The complaint submitted by ILA and ENIL is an attempt to challenge this practice and ensure that only projects that genuinely support social inclusion of persons with disabilities, and prevent discrimination, benefit from EU support.
Photo credits: private. The photo shows one of the institutions for adults with disabilities in Austria co-funded by EU structural funds.
About ILA and ENIL
Independent Living Austria (ILA) is the nationwide advocacy organisation of the Independent Living Movement in Austria. As an umbrella organisation, ILA aims at creating preconditions for the independent living of persons with disabilities and their equality in all spheres of live. In line with the principle “Nothing about us without us” and the self-advocacy right of persons with disabilities, ILA represents and supports initiatives, organisations and individuals in their fight for equality and against discrimination. The aim is to achieve equality of persons with disabilities and to fully enforce their rights as citizens.
The European Network on Independent Living (ENIL) is a Europe-wide network of disabled people, with members throughout Europe. ENIL’s vision is of Europe where all disabled people are able to exercise choice and control over their lives, on an equal level with others; where they are valued members of the community and can enjoy all of their human rights, as set out in the UN Convention on the Rights of Persons with Disabilities (CRPD). ENIL’s mission is to advocate and lobby for Independent Living values, principles and practices, namely for a barrier-free environment, provision of personal assistance support and adequate technical aids, together making full citizenship of disabled people possible. ENIL’s activities target European, national and local administrations, politicians, media, and the general society. See: www.enil.eu
If you have information about EU funded projects that do not comply with the EU Fundamental Rights Charter and/or the UN Convention on the Rights of Persons with Disabilities, you can file a complaint to the European Commission or the European Ombudsman. Cases of fraud or serious financial irregularities involving EU Funds can be reported to OLAF – the European Anti-Fraud Office.
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