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The Court of Justice of the European Union (CJEU), with its recent decision in the case Rintisch v. Eder [Decision of 25.10.2012, Case, C-553/2011] clarified that the use of a different form of a mark, which is also registered as a mark, constitutes “genuine use” of the mark, according to article 10 par. 2 of Directive 89/104/EC.

According to the facts of the case,Mr Rintischthe, the plaintiff, is the proprietor of the word marks PROTIPLUS and PROTI, as well as of the figurative mark, PROTIPOWER, which are registered for, amongst other things, protein-based products. Mr Eder, the defendant is the proprietor of the later word mark Protifit, registered for food supplements, vitamin preparations and dietetic foodstuffs The plaintiff had initiated proceedings against the defendant for the prohibition of use of his trademark Protifit, on the basis that there was likelihood of confusion mainly with the plaintiff’s mark PROTI and, secondarily with his marks PROTIPLUS and PROTIPOWER. The defendant contended in defence that the plaintiff had failed to use the trade mark PROTI. The plaintiff responded that he had put that trade mark to use by using the trade names ‘PROTIPLUS’ and ‘Proti Power’. At first instance, the plaintiff’s claims were rejected, on the ground that the rights deriving from the trade mark PROTI could not be relied on as against the trade mark ‘Protifit’. The Court of Appeals confirmed the decision of the first instance court.

Mr Rintisch appealed to the Bundesgerichtshof (Federal Court of Justice) on a point of law. The Bundesgerichtshof states, first of all, that, despite differing from the trade mark PROTI, the trade names ‘PROTIPLUS’ and ‘Proti Power’ do not alter the distinctive character of that trade mark and that the applicant put the trade marks PROTIPLUS and Proti Power to genuine use prior to the publication of the registration of the trade mark Protifit. The referring court thus starts from the premiss that PROTI must be regarded as having been put to “genuine use” for the purposes of Paragraph 26(3) of the MarkenG, which provides that “‘Use of the trade mark in a form different from the form in which it was registered shall also be regarded as use of a registered trade mark, provided that the differences do not alter the distinctive character of the mark. The first sentence must also be applied if the trade mark is also registered in the form in which it has been used.’

However, the referring court expresses uncertainty as to whether and, if so, in what circumstances the second sentence of Paragraph 26(3) of the MarkenG is consistent with Article 10(1) and (2)(a) of Directive 89/104.
The CJEU replied in the affirmative by saying that there is nothing at all in the wording of Article 10(2)(a) of Directive 89/104 to suggest that the different form in which the trade mark is used cannot itself be registered as a trade mark. Indeed, the only condition laid down in that provision is that the form in which the trade mark is used may differ from the form in which that trade mark was registered only in elements which do not alter the distinctive character of the mark (paragraph 20). The purpose of Article 10(2)(a) of Directive 89/104, which avoids imposing a requirement for strict conformity between the form used in trade and the form in which the trade mark was registered, is to allow the proprietor of the mark, in the commercial exploitation of the sign, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned (par.21). That purpose would be jeopardised if, in order to establish use of the registered trade mark, an additional condition had to be met, whereby the different form in which that mark is used should not itself have been registered as a trade mark. In fact, the registration of new forms of a trade mark makes it possible, where necessary, to anticipate changes that may occur in the trade mark’s image and thus to adapt it to the realities of a changing market (par.22).

Hence, according to the CJEU, article 10 par.2 (a) of Directive 89/104 must be interpreted as meaning that the proprietor of a registered trade mark is not precluded from relying, in order to establish use of the trade mark for the purposes of that provision, on the fact that it is used in a form which differs from the form in which it was registered, without the differences between the two forms altering the distinctive character of that trade mark, even though that different form is itself registered as a trade mark. (par.30).

The CJEU, further, held that article 10 (2) (a) must be interpreted as precluding an interpretation of the national provision intended to transpose it into domestic law whereby Article 10(2)(a) does not apply to a ‘defensive’ trade mark which is registered only in order to secure or expand the protection of another registered trade mark that is registered in the form in which it is used” (par.33). This means that the abovementioned provision is also applicable in case of “defensive marks” that have as sole purpose of registration the extension of the scope of protection of the previous mark.

The said decision is, undoubtedly, good news for the proprietors of a portfolio of trademarks, having an element in common, since they just have to prove the use of a mark that is not substantially differentiated from the distinctive character of the previous mark, in order to fulfill the precondition of “genuine use”. In addition, the protection also extends to the “defensive” marks. These conclusions do not apply, however, in case of a “family” or “series” of marks, according to the decision of the CJEU in the case BRIDGE/BAINBRIDGE, as the Court expressly stated in the present case (par.25 et seq).

Athens Multi-member Court of First Instance adjudicates in favor of our clients- the plaintiffs and against the Bank of Cyprus for distributing convertible bonds (including the so called “Cocos”) to them, in breach of the provisions of MiFID, as transposed to Greek legislation and the Greek civil code.

Our office handles the case of some holders of convertible bonds of the Bank of Cyprus and Laiki Bank (i.e. holders of Coco’s – called in Greek“MAEK”), which were distributed by the branches of the abovementioned banks in Greece or by other banks incorporated in Greece.

Our law office has managed to win the trial before the Court of Appeals of the Northern Aegean against a well-known insurance company and an insurance consultant, who defrauded the company’s clients. In particular, the Court of Appeals issued the decision n. 47/2018 and accepted our appeal on the first instance decision, adjudicating that the consultant, who had managed to gain a very good reputation in the insurance sector and the local society of Hios, defrauded clients by distributing to them photocopies of the insurance company’s official documents (i.e. petitions to participate in insurance contracts etc) who thought they were purchasing genuine insurance products of the company. The Court accepted the vicarious liability of the insurance company and that the claimants contributed to their damage at a small percentage (20%).

Recent Decisions by the Court of Appeals in Athens and Crete have adjudicated that Coco Bonds distribtued to Greek retail investors by the Bank of Cyprus in 2011 are not suitable investments.

In particular, Decision n. 70/2017 of Court of Appeal of Eastern Crete adjudicated that:

“Enhanced Capital Securities are considered as complex financial instruments, mainly because of their intrinsic characteristics as perpetual securities and as unilaterally convertible to equity; as a result, they comprise high risks, possibly not comprehensible fully and easily by the private investor

The said contractual terms, which the plaintiff was not aware of when he made the purchase, constitute the said investment unsuitable for the plaintiff; if he had known these characteristics, he would not have proceeded to the purchase since he was a conservative investor interested in preserving his funds for a short to medium term period without risking his principle investment and by receiving at the same time the contractually agreed interest. He was not interested in trading these securities in the secondary markets or to commit his capital for an indefinite period of time.

The employee of the defendant who proposed such investment did not take into account the needs and aims of the investor. This unlawful act is the factual cause for the loss the plaintiff has suffered because of the purchase of the securities.”

The Office applied for the account of policy holders of ASPIS PRONOIA before the European Court of Human Rights against the Hellenic Republic and the decision 3783/2014 of the Council of State for contravention of article 6 of the ECHR.

The decision n. 3783/2010 of the Council of State has been issued on 3/11/2014 on the action filed by policy holders of  “ΑSPIS ΡRΟΝΟΙΑ AEGA”, which was heard on 10/3/2014 when our office made an intervention  for the account of its clients. The claimants grounded their action on article 105 Introductory Law of the Civil Code relating to civil liability of the State and asked for compensation and non pecuniary damages, because of the illegal actions and omissions of the competent supervisory authorities of the insurance sector (initial the competent department of the Ministry of Development and subsequently EPEIA).
Τhe Council of State excludes liability of the State since, according to its reasoning, the claim for civil liability under artilce 105ILCC is inadmissible since the provisions of insurance legislation (namely p.d. 400/1970 and Law 3867/2010) are set for the protection of the general interest and their purpose is not to protect in parallel individual insurers. Τhe Council of State analyses the provisions of law 3867/2010 and comes to the conclusion that the claimants shall receive certain compensation from the newly established Life Guarantee Fund established by the said Law. The said mechanism provides satisfactory protection for insurers since it covers an amount equal to 70% of their claims, according to the Council of State. Finally, the Council refers the case to the competent Court of First Instance. The latter shall reject the actions complying with the decision of the Council of State.
Αccording to our office the legal reasoning of the case of the Council of State is not correct since previous judgments of the same court have reached the conclusion that the provisions of insurance legislation especially the prudential rules concerning the duties of the authorities are set for the protections of the insurers.

The Greek Council of State in plenary session with its decisions No. 1116/2014 and 1117/2014 ruled, by a majority vote, that the legal framework for the implementation of the so-called “PSI”,( “Private Sector Involvement”) i.e. the participation of private creditors in the writing-down of sovereign debt through the exchange of Greek sovereign bonds with new ones of significantly lower value, is legal and in line with the Greek Constitution and the provisions of the European Convention of Human Rights.

One of the main arguments of the bondholders who had suffered damage due to the write-down of their holding of government securities was that the PSI was contrary to protection of the legitimate expectations principle. The Court rejected their argument, on the premise that from the issuance of sovereign securities until their expiration, unforeseeable events may occur which substantially limit or even annihilate the economic possibilities of the sovereign who issues or guarantees these titles. When such events occur, the state legally seeks a renegotiation, according to the “rebus sic stantibus” principle, which is an exception from the general legal principle pacta sunt servanda. In addition, according to the opinion of the majority, the provisions of L. 4050/2012 “did not affect the procedural rights of the applicants” as investors of underlying assets, so as to be considered unconstitutional, since, according to Art. 5 of Law 2198/1994 from the issuance until the expiration of the underlying assets their issuer is not “contracted” (term used in the judgment) with the investors but with the intermediaries which are members of the securities settlement system for sovereign securities held in book-entry form by the Bank of Greece. The intermediaries of the System may operate with the investors for the transfer of the securities, but the relevant agreements take place between the intermediaries and investors and do not produce legal results in favour of or against the Hellenic Republic or the Central Bank of Greece (par. 24). Moreover, the inclusion of the CACs to the terms of the bond issues constitutes a practice which is followed in other countries (UK and USA), has been examined by the European Economic and Financial subcommittee, was subject to negotiation with the Troika, the ECB, the IMF and the investment institutions and was authorised by the above Committee as a Model Collective Action Clause. Therefore, as the court judgement concludes, the above provisions of Law 4050/2012 on the retroactive inclusion of the CACs, which invite to participation only the entities who own a portfolio or/and have a portfolio of their investors-customers in the System and presumes that the participation of the bondholder takes place in line with the consent of the investor-customer, do not contradict the provisions of Art.5 of the Constitution.

Furthermore, the majority of the Council of State held that, according to Art 5, par.1, 17 par. 1 and 25 par. 1 of the Greek Constitution, in case of serious reasons of public interest, the restriction of any kind of right in personam is permitted if under the given circumstances it is deemed to be necessary and appropriate for the serving of the public interest, as well as compatible with the principle of proportionality. Finally, according to the Court, under those conditions, the reduction of the property value does not constitute a breach of Art.1 FAP, which enshrines the principle of a fair balance between the general interest of the whole and the protection of the fundamental rights of the individual .

The statement of Jeroen Dijsselbloem, the Dutch Finance Minister who is also the head of the Council of Ministers of Eurozone (Eurogroup), in Financial Times after the hair-cut of deposits and other creditors’ claims of the two most important banks of Cyprus in March 2013, concerning the adoption of the specific rescue model in other cases of non viable banks, has provoked serious disturbances in stock markets and an abrupt fall in the price of the euro, because of which he had to make another statement to destroy all impressions already made. His words, however, reflected the way the European Commission plans to deal with banks’ insolvency risk.

In particular, on the 6th of July 2012the Proposal for a Directive of the EU «establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directives 77/91/EEC and 82/891/EC, Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC and 2011/35/EC and Regulation (EU) No 1093/2010», was published, which follows the guidelines set forth by the Financial Stability Board at a global level following the request of G-20, after the burst of the global financial crisis, in the Report «Key Attributes of Effective Resolution Regimes for Financial Institutions». The Proposal sets forth, inter alia, the framework for the resolution of credit institutions and investment firms, which are non viable or tend to become non viable, authorizes the “resolution authority” of the home member state (i.e. the state where the institution is incorporated) to use all necessary “resolution tools”, one of which is the “bail-in”. On the 23 of June 2013, the Council of Europe has granted its consent to the adoption of the proposal directive, which is awaited at the end of this year.

Bail-in may be defined as the write-down of creditors’ claims and the transformation of debt (mainly bonds but also no guaranteed deposits) into equity, so that the creditors become the new shareholders of the credit institution (see.B-J. Attinger, Crisis Management and Bank resolution. Quo Vadis, Europe? Legal Working Paper Series, November 2011). The resolution authority decides to put in effect the debt write-down or bain-in tool in case the credit institution is non-viable, for instance when the capital adequacy reaches the limit or falls below the minimum supervisory standards. The aim of bail-in is the recapitalization of the credit institution via the reduction of its obligations towards the creditors and it provides a good opportunity for the resolution authority to resolve the credit institution as a going-concern and to avoid the contagion in financial markets and in the economy as a whole.

The said supervisory tool has recently been introduced in the legislation of certain states at both sides of the Atlantic, after the turbulence in the global financial markets, as a means to resolve a credit institution by avoiding the normal insolvency procedures. Indicatively , bail-in has been introduced in Germany (par 9 and 12 of the Act for the Resolution of Credit Institutions-Kreditinstitute-Reorganisationsgesetz), in Switzerland (Banking Act of 1934), in USA (see: «2010 Wall Street Reform and Consumer Protection Act», L. Bernstein, Dod-Frank Kills: How the US joined the International Bail-in regime, May 26, 2013, J.Coffee Bail-ins versus Bail-outs: Using Contingent Capital To Mitigate Systemic Risk, σελ. 23), while other states, such as Great Britain and Canada, are in the process of adopting the said measure.

It is at least impressive, that in Cyprus the relevant legislation for the resolution of credit institutions and the bail-in tool have been adopted, literally, within one week, at the end of March 2013 and in order to receive the vital financial support from international creditors, having taken by surprise the creditors of the two banks, who saw their claims being written down, without at the same time, being able to take up their deposits, because of the introduction of special measures for temporary stay on withdrawals. In particular, the depositors and other creditors of the Bank of Cyprus have become shareholders acquiring shares of class A, B, C and D depending on the nature of their claim (see the Decree of the Central Bank of Cyprus 103/2013 “in relation to Bail-in of the Bank of Cyprus”, published on 29.3.2013). Laiki Bank, has been divided into a “good” and a “bank” bank, with the viable part being transferred to the Bank of Cyprus whereas the non viable part being put into liquidation (see the Decree of the Central Bank of Cuprus Co Ltd 94/2013 “in relation to the Sale of certain Services of Cyprus Popular Bank Public Co Ltd”, published on 25.3.2013).

The Cypriot legislation relating to bail-in has as its role model the provisions of the Proposal Directive, which are analysed in the recent Paper written by Anna Mitsou and submitted to the 23d Hellenic Conference of Commercial Lawyers.

Articles 43-120 of the New Law 4072/2012 provide for a new corporate form, ie the Private Company (IKE), which has legal personality and is a commercial company, even if it is not established for commercial purposes.

I.K.E. is a capital company, i.e. it has a share capital and the liability of the partners is limited (only towards third parties and in case of its liquidation), combining, however, the characteristics of a personal company, since the contributions of the partners may be non-monetary (“no capital contribution”) and they may assume liability for certain of its debts (through the “guarantee-contribution”).

In particular, one of the main advantages of IKE is that the minimum share capital is up to 1 Euro. At least, one partner must participate by acquiring at least one share equal to capital contribution (Art. 77). The Greek legislator has wisely chosen to set the minimum share capital at such a low level in order to boost business activity, during this unprecedented economic crisis, which, has led, at best, at the avoidance of any business risk. Besides, the institution of the share capital may legally constitute an assurance for the creditors that it will not be distributed to the shareholders, however, in practice, it is very common in case of insolvency that there the capital “is vanished”.

Another advantage of IKE is that there are three kinds of contributions in order to acquire company’s shares, providing flexibility to the partners to adjust the contributions according to their aims and needs. Apart from capital contributions, the new law recognizes the non-capital and the guarantee contribution. According to the definitions of the Law, the non-capital contributions are contributions that cannot be evaluated in cash, such as contributions arising for the taking-up of the obligation to execute works or provide services (Art. 78). Hence, a non-capital contribution may be an employment relationship, the provision of intangible goods, the transfer of know-how or of clientele e.t.c. In addition, it is possible to have “guarantee contributions”, in which case the partner undertakes the obligation to guarantee the company’s debts until the amount set by the articles of association (Art. 79). The value of the “guarantee-contribution” value cannot exceed 75% of the amount of the liability assumed by the partner towards the company’s creditors. This new possibility aims to facilitate company financing, since, on the one hand, the partner is not obliged to pay his/her capital contribution at the establishment of the company, on the other hand, the guarantee given by the partner in relation to the company’s debts reinforces the creditworthiness of I.K.E. in case the partner is a credit worthy individual.

Another novelty of this new corporate form is the flexibility and ease at the amendments of the by-laws. I.K.E. may be a single-member company, the by-laws may determine the way the company is managed and represented and a private document is sufficient for any amendment (whereas in the case of the Company limited by shares, the law still requires a notary deed). In any case, however, the corporate form of IKE does not allow transformations that will make I.K.E. a pure capital company, deprived of any personal characteristic.

From a taxation aspect, I.K.E. is equal to a Company Limited by Shares (Art. 116 par.11 of POL 1150/14.06.2012 of the Ministry of Finance).

The One Member Court of First Instance with its decision n. 12716/2012 (interim measures procedure) has accepted the petition for annulment submitted by the applicant, an insurer represented by Anna Mitsou, against ASPIS PRONOIA AEGA for the modification of the temporary life-insurance portfolio, drafted by the Supervisor of the Life Insurance contracts, and the claim of the insurer arising from the life insurance contract (“ASPIS PLUS”) was accepted and included in the temporary life insurance portfolio.