K MENU | Decision 2383324 - KERN PHARMA, S.L. v. Ruokakesko Oy
Date Published: Oct 11, 2017
OPPOSITION No B 2 383 324
Kern Pharma, S.L., pol. Ind. Colon II Calle Venus, 72, 08228 Terrassa (Barcelona), Spain (opponent), represented by Sugrañes Patentes y Marcas, Calle de Provenza, 304, 08008 Barcelona, Spain (professional representative)
a g a i n s t
Kesko Oyj, Sörnäistenkatu 2, 00580 Helsinki, Finland (applicant), represented by Borenius Attorneys Ltd, Eteläesplanadi 2, 00130 Helsinki, Finland (professional representative).
On 29/03/2017, the Opposition Division takes the following
1. Opposition No B 2 383 324 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 12 466 322, namely against all the goods in Class 5. The opposition is based on, inter alia, Spanish trade mark registration No 2 275 765. The opponent invoked Article 8(1)(b) EUTMR.
LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR
A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.
The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s Spanish trade mark registration No 2 275 765.
- The goods
The goods on which the opposition is based are the following:
Class 5: Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth and dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.
The contested goods are the following:
Class 5: Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for humans and animals; Plasters, materials for dressings; Material for stopping teeth; Dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides; Absorbent wadding; Absorbent wadding; Acetates for pharmaceutical purposes; Aconitine; Albuminous foodstuffs for medical purposes; Albuminous preparations for medical purposes; Aldehydes for pharmaceutical purposes; Algicides; Alginates for pharmaceutical purposes; Alkaline iodides for pharmaceutical purposes; Alkaloids for medical purposes; Medicinal alcohol; Aloe vera preparations for pharmaceutical purposes; Aluminium acetate for pharmaceutical purposes; Amalgams (Dental –); Amino acids for medical purposes; Amino acids for veterinary purposes; Breast-nursing pads; Cachets for pharmaceutical purposes; Angostura bark for medical purposes; Antibiotics; Antiparasitic collars for animals; Anti-rheumatism bracelets; Anti-rheumatism rings; Antiseptic cotton; Antiseptics; Anti-uric preparations; Appetite suppressants for medical purposes; Appetite suppressant pills; Bracelets for medical purposes; Aseptic cotton; Asthmatic tea; Laxatives; Moulding wax for dentists; Moulding wax for dentists; Insect repellents; Salts for mineral water baths; Oxygen baths; Bath salts for medical purposes; Germicides; Bacterial poisons; Mediums (Bacteriological culture -); Mediums (Bacteriological culture -); Mediums (Bacteriological culture -); Bacterial preparations for medical and veterinary use; Bacteriological preparations for medical and veterinary use; Balms for medical purposes; Balsamic preparations for medical purposes; Adhesive bands for medical purposes; Slimming pills; Barks for pharmaceutical purposes; Semen for artificial insemination; Bone cement for surgical and orthopaedic purposes; Royal jelly for pharmaceutical purposes; Menstruation bandages; Biocides; Biological preparations for medical purposes; Biological preparations for veterinary purposes; Biological tissue cultures for medical purposes; Biological tissue cultures for veterinary purposes; By-products of the processing of cereals for dietetic or medical purposes; Blood for medical purposes; Leeches for medical purposes; Blood plasma; Laxatives; Haemostatic pencils; Styptic preparations; Haemostatic pencils; Goulard water; Diaper-pants (Babies’ -); Nappy pants for incontinents; Diaper-pants (Babies’ -); Babies’ napkins; Diaper-pants (Babies’ -); Diapers for pets; Incontinence pads; Cotton for medical purposes; Cattle washes; Bromine for pharmaceutical purposes; Bronchodilating preparations; Diabetic bread adapted for medical use; Mediums (Bacteriological culture -); Cedar wood for use as an insect repellent; Cellulose esters for pharmaceutical purposes; Cellulose ethers for pharmaceutical purposes; Cement for animal hooves; Tobacco-free cigarettes for medical purposes; Melissa water for pharmaceutical purposes; Menstruation bandages; Decoctions for pharmaceutical purposes; Dental wax; Deodorants for clothing and textiles; Disinfectants for hygiene purposes; Disinfectants for chemical toilets; Fumigation preparations for medical purposes; Diagnostic preparations; Diastase for medical purposes; Dietetic beverages adapted for medical purposes; Dietetic foods adapted for medical purposes; Dietetic foods adapted for medical purposes; Dietetic substances adapted for medical use; Digitalin; Dill oil for medical purposes; Animal washes; Vesicants; Drugs for medical purposes; Beverages adapted for medicinal purposes; Douching preparations for medical purposes; Corn rings for the feet; Elixirs (pharmaceutical preparations); Enzymes for medical purposes; Enzymes for veterinary purposes; Enzyme preparations for medical purposes; Enzyme preparations for veterinary purposes; Esters for pharmaceutical purposes; Ethers for pharmaceutical purposes; Eucalyptol for pharmaceutical purposes; Eucalyptus for pharmaceutical purposes; Pharmaceutical preparations; Pharmaceutical preparations for treating dandruff; Skin care (Pharmaceutical preparations for -); Sunburn preparations for pharmaceutical purposes; Febrifuges; Phenol for pharmaceutical purposes; Greases for medical purposes; Greases for veterinary purposes; Cod liver oil; Fish meal for pharmaceutical purposes; Fly-catching adhesives; Fly catching adhesives; Fly catching paper; Fly destroying preparations; Formic aldehyde for pharmaceutical purposes; Phosphates for pharmaceutical purposes; Remedies for foot perspiration; Caustics for pharmaceutical purposes; Fennel for medical purposes; Adhesives for dentures; Food for babies; Surgical dressings; Dressings, medical; First-aid boxes, filled; Gallic acid for pharmaceutical purposes; Bandages for dressings; Gases for medical purposes; Gauze for dressings; Gelatine for medical purposes; Gentian for pharmaceutical purposes; Poisons; Glycerine for medical purposes; Glycerophosphates; Glucose for medical purposes; Poultices; Guaiacol for pharmaceutical purposes; Rubber for dental purposes; Gum for medical purposes; Gamboge for medical purposes; Gurjun [gurjon, gurjan] balsam for medical purposes; Mud for baths; Belts for sanitary napkins [towels]; Antiparasitic collars for animals; Pregnancy (Chemical preparations for the diagnosis of -); Sea water for medicinal bathing; Haematogen; Haematogen; Haemoglobin; Haemoglobin; Haemorrhoid preparations; Herbicides; Adjuvants for medical purposes; Propolis for pharmaceutical purposes; Hormones for medical purposes; hooves (cement for animal —); Hops (Extracts of -) for pharmaceutical purposes; Repellents for dogs; Dog washes; Dog lotions; Headache pencils; Hydrastine; Hydrastinine; Hydrated chloral for pharmaceutical purposes; Medicinal hair growth preparations; Adhesive bands for medical purposes; Plasters; Adhesive bands for medical purposes; Implants (Surgical -) [living tissues]; Medicinal infusions; Pants, absorbent, for incontinents; Incontinence pads; Insect repellents; Repellents for dogs; Insect repellent incense; Insecticides; Irish moss for medical purposes; Isotopes for medical purposes; Jalap; Iodine for pharmaceutical purposes; Iodides for pharmaceutical purposes; Iodoform; Tincture of iodine; Soil-sterilising preparations; Jujube, medicated; Yeast for pharmaceutical purposes; Milk ferments for pharmaceutical purposes; Milk ferments for pharmaceutical purposes; Ferments for pharmaceutical purposes; Potassium salts for medical purposes; Lime (Preparations of -) for pharmaceutical purposes; Calomel; Pants (Sanitary -); Camphor for medical purposes; Camphor oil for medical purposes; Candy for medical purposes; Capsules for medicines; Carbolineum [parasiticide]; Cachou for pharmaceutical purposes; Caustic pencils; Vine disease treating chemicals; Chemical conductors for electrocardiograph electrodes; Phylloxera (Chemical preparations for treating -); Pregnancy (Chemical preparations for the diagnosis of -); Chemical preparations for pharmaceutical purposes; Chemical preparations for medical purposes; Chemical preparations for veterinary purposes; Contraceptives (Chemical -); Chemical reagents for medical or veterinary purposes; Chemico-pharmaceutical preparations; Quinquina for medical purposes; Quinquina for medical purposes; Quinquina for medical purposes; Chinoline for medical purposes; Surgical tissues; Surgical dressings; Implants (Surgical -) [living tissues]; Surgical tissues; Dental mastic; Chloroform; Deodorants for clothing and textiles; Cocaine; Collodion for pharmaceutical purposes; Compresses; Condurango bark for medical purposes; Solutions for contact lenses; Chemical conductors for electrocardiograph electrodes; Protein dietary supplements; Alginate dietary supplements; Albumin dietary supplements; Royal jelly dietary supplements; Enzyme dietary supplements; Food supplements of pollen; Glucose dietary supplements; Propolis dietary supplements; Yeast dietary supplements; Casein dietary supplements; Lecithin dietary supplements; Flaxseed dietary supplements; Flaxseed oil dietary supplements; Protein supplements for animals; Wheat germ dietary supplements; Dietary supplements for animals; Creosote for pharmaceutical purposes; Croton bark; Anticryptogamic preparations; Breast-nursing pads; Curare; Acaricides; Quassia for medical purposes; Mercurial ointments; Cooling sprays for medical purposes; Frostbite salve for pharmaceutical purposes; Dental lacquer; Liquorice for pharmaceutical purposes; Liquorice for pharmaceutical purposes; Milk sugar for pharmaceutical purposes; Larvae exterminating preparations; Laxatives; Laxatives; Lecithin for medical purposes; Alloys of precious metals for dental purposes; Corn remedies; Corn rings for the feet; Fly catching adhesives; Fly catching adhesives; Flaxseed for pharmaceutical purposes; Flaxseed meal for pharmaceutical purposes; Liniments; Lint for medical purposes; Tissues impregnated with pharmaceutical lotions; Lotions for pharmaceutical purposes; Lotions for veterinary purposes; Air deodorising preparations; Air purifying preparations; Tranquillizers; Deodorants, other than for human beings or for animals; Smelling salts; Lupulin for pharmaceutical purposes; Medicines for dental purposes; Medicines for human purposes; Medicines for veterinary purposes; Remedies for foot perspiration; Remedies for perspiration; Solutions for contact lenses; Solvents for removing adhesive plasters; Magnesia for pharmaceutical purposes; Mothproofing preparations; Paper (Mothproof -); Malt for pharmaceutical purposes; Malted milk beverages for medical purposes; Milk of almonds for pharmaceutical purposes; Milk of almonds for pharmaceutical purposes; Mangrove bark for pharmaceutical purposes; Anthelmintics; Anthelmintics; Digestives for pharmaceutical purposes; Constipation (Medicines for alleviating -); Headache (Articles for -); Mediums (Bacteriological culture -); Beverages adapted for medicinal purposes; Medicinal oils; Medicinal roots; Medicinal tea; Medicinal herbs; Medicinal alcohol; Mud (Medicinal -); Lozenges for pharmaceutical purposes; Mud (Medicinal -); Bath preparations for medical purposes; Medicinal infusions; Medical preparation for slimming purposes; Goulard water; Medicinal hair growth preparations; Menstruation bandages; Tampons; Menstruation bandages; Tampons; Pants (Sanitary -); Menthol; Cultures of microorganisms for medical and veterinary use; Nutritive substances for microorganisms; Cultures of microorganisms for medical and veterinary use; Cultures of microorganisms for medical and veterinary use; Mineral food supplements; Mineral waters for medical purposes; Mineral water salts; Pharmaceutical preparations for treating dandruff; Flour for pharmaceutical purposes; Chemical preparations to treat mildew; Ergot for pharmaceutical purposes; Lacteal flour for babies; Milking grease; Milk sugar for pharmaceutical purposes; Flour for pharmaceutical purposes; Moleskin for medical purposes; Irish moss for medical purposes; Mouthwashes for medical purposes; Mint for pharmaceutical purposes; Myrobalan bark for pharmaceutical purposes; Anaesthetics; Narcotics; Bicarbonate of soda for pharmaceutical purposes; Sodium salts for medical purposes; Nervines; Nutritive substances for microorganisms; Nutritional supplements; Herbicides; Vermin destroying preparations; Cod liver oil; Medicinal oils; Mustard poultices; Opiates; Opium; Opodeldoc; Organotherapy preparations; Paper (Mothproof -); Paper for mustard poultices; Paper for mustard poultices; Parasiticides; Fumigating pastilles; Lozenges for pharmaceutical purposes; Pectin for pharmaceutical purposes; Pepsins for pharmaceutical purposes; Peptones for pharmaceutical purposes; Pesticides; Fumigating pastilles; Blood plasma; Plasters; Mustard poultices; Pomades for medical purposes; Porcelain for dental prostheses; Haemorrhoid preparations; Teething (Preparations to facilitate -); Burns (Preparations for the treatment of -); Chilblain preparations; Preparations for destroying noxious animals; Vaginal washes; Callouses (Preparations for -); Antiparasitic preparations; Powder of cantharides; Pyrethrum powder; Pearl powder for medical purposes; Quebracho for medical purposes; Rhubarb roots for pharmaceutical purposes; Radioactive substances for medical purposes; Radiological contrast substances for medical purposes; Radium for medical purposes; Chemical reagents for medical or veterinary purposes; Reagent paper for medical or veterinary purposes; Preparations for reducing sexual activity; Tartar for pharmaceutical purposes; Detergents for medical purposes; Contact lens cleaning preparations; Medicine cases, portable, filled; Castor oil for medical purposes; Anti-rheumatism rings; Wheat smut (Chemical preparations to treat -); Rat poison; Insect repellent incense; Fumigating pastilles; Fumigating pastilles; Medicinal roots; Mineral water salts; Salts for medical purposes; Salts for mineral water baths; Ointments for pharmaceutical purposes; Sunburn ointments; Menstruation bandages; Pants (Sanitary -); Tampons; Pants (Sanitary -); Sarsaparilla for medical purposes; Tranquillizers; Mustard for pharmaceutical purposes; Mustard oil for medical purposes; Mustard poultices; Mustard poultices; Serotherapeutic medicines; Serums; Surgical tissues; Tissues impregnated with pharmaceutical lotions; Personal sexual lubricants; Siccatives [drying agents] for medical purposes; Syrups for pharmaceutical purposes; Herbicides; Scapulars for surgical purposes; Menstruation bandages; Dental abrasives; Analgesics; Slug exterminating preparations; Sugar for medical purposes; Powder of cantharides; Semen for artificial insemination; Trace elements (Preparations of -) for human and animal use; Stem cells for medical purposes; Stem cells for veterinary purposes; Sterilising preparations; Soil-sterilising preparations; Steroids; Sulfur sticks [disinfectants]; Strychnine; Starch for dietetic or pharmaceutical purposes; Lozenges for pharmaceutical purposes; Sulphonamides (medicines); Suppositories; Vulnerary sponges; Fungicides; Flowers of sulfur for pharmaceutical purposes; Sulfur sticks [disinfectants]; Oxygen for medical purposes; Oxygen baths; Acids for pharmaceutical purposes; Vulnerary sponges; Soporifics; Tanning pills; Antioxidant pills; Dental amalgams; Gold (Dental amalgams of -); Dental mastics; Material for stopping teeth; Dental mastics; Dental lacquer; Adhesives for dentures; Dental abrasives; Adhesive bands for medical purposes; Bath (Therapeutic preparations for the -); Organotherapy preparations; Turpentine for pharmaceutical purposes; Oil of turpentine for pharmaceutical purposes; Deodorants for clothing and textiles; Tinctures for medical purposes; Tobacco extracts (insecticides); Tobacco-free cigarettes for medical purposes; Tonics (medicines); Pants (Sanitary -); Pants (Sanitary -); Pants (Sanitary -); Charcoal for pharmaceutical purposes; Chewing gum for medical purposes; Thymol for pharmaceutical purposes; Pants (Sanitary -); Dry rot fungus (Preparations for destroying -); Mice (Preparations for destroying -); Vaccines; Cotton for medical purposes; Thermal water; Petroleum jelly for medical purposes; Sea water for medicinal bathing; Mineral waters for medical purposes; Veterinary preparations; Wheat smut (Chemical preparations to treat -); Tartar for pharmaceutical purposes; Bismuth subnitrate for pharmaceutical purposes; Bismuth preparations for pharmaceutical purposes; Vitamin preparations; Wart pencils; Hydrogen peroxide for medical purposes; Herbicides; Fibre (Dietary -); Eye-washes; Eye-washes; Eyepatches for medical purposes; Medicinal herbs; Smoking herbs for medical purposes; Smoking herbs for medical purposes; Herbal teas for medicinal purposes; Napkins ( babies’) of textile.
Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.
- Relevant public — degree of attention
The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.
In the present case, the goods assumed to be identical are directed at both the general public and health professionals such as doctors and pharmacists.
The degree of attention of the professional public will vary from average to high. The degree of attention of general consumers varies depending on the type of pharmaceutical product to be purchased. The degree of attention will be higher than average for pharmaceuticals for which a medical prescription is required and for those that must be taken under professional supervision. Consumers are likely to have a high degree of attention in this regard, as the prescription implies a therapeutic necessity (21/10/2008, T-95/07, Prazol, EU:T:2008:455, § 29; 08/07/2009, T-240/08, Oli, EU:T:2009:258, § 50). Consumers will, moreover, show a higher than average degree of attention in relation to pharmaceutical products that are sold without prescription, since non-prescribed pharmaceuticals also affect the state of consumers’ health (15/12/2009, T-412/08, Trubion, EU:T:2009:507, § 28).
- The signs
Earlier trade mark
The relevant territory is Spain.
The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).
The earlier mark is a figurative mark consisting of an upper case black letter ‘K’, which is surrounded by an incomplete black circle that creates the impression of a stamp.
The contested sign is a figurative mark consisting of an upper case black letter ‘K’, which is rather stylised and dominates the visual impression of the mark. The mark also contains the word ‘MENU’, in the top right corner in smaller characters.
Visually, both signs contain the letter ‘K’ depicted in black. However, there are several noticeable differences between the signs. The font used for the letter ‘K’ is much thicker in the contested sign than in the earlier mark. Furthermore the earlier mark is horizontal while the contested sign is inclined to the left. As a result of which the contested sign has a slim, vertical appearance, in comparison with the wider, horizontal appearance of the earlier mark. The earlier mark is also surrounded by an incomplete circle, which creates the impression of a stamp. In the contested mark, although it is not dominant, the word ‘MENU’ cannot be disregarded, and it creates an additional difference.
Therefore, the signs are visually similar to a low degree at most.
Aurally, the pronunciation of the signs coincides in the letter ‘K’ and differs in the additional letters ‘MENU’ of the contested sign.
Therefore, the signs are aurally similar to an average degree.
Conceptually, the letter ‘K’, included in both signs, will be associated by the relevant public with the corresponding letter of the Roman alphabet. The signs differ, however, in the additional word ‘MENU’ of the contested sign, which will be understood by the Spanish public and the fact that the earlier mark resembles to a stamp.
The signs are therefore conceptually similar to an average degree, as they have in common the concept of the letter ‘K’.
As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.
- Distinctiveness of the earlier mark
The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.
The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.
Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.
- Global assessment, other arguments and conclusion
The Court has stated that likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).
The similarities between the signs are limited to the fact that each contains the letter ‘K’. Considering this, the way the letter appears in each sign is decisive. The letter ‘K’ is depicted in a very different manner in the two signs. As mentioned above, the signs are only visually similar to a low degree, and – in spite of the assumption of identity between the goods – this is not sufficient to find a likelihood of confusion.
Indeed, although the signs coincide aurally and conceptually in the element ‘K’, in terms of the overall visual impressions given by the marks, the differences prevail.
Therefore, there is no likelihood of confusion, since the significant differences in stylisation, and the additional word ‘MENU’, are clearly perceptible and sufficient to exclude any likelihood of confusion between the marks, even for identical goods.
As regards the overall assessment of likelihood of confusion, the Court has made it clear that the fact that two trade marks consisting of the same letter (or of the same sequence of letters) are found to be identical from an aural and a conceptual point of view is relevant when it comes to assessing the existence of a likelihood of confusion. In such cases, it is only when the contested trade mark gives a sufficiently different visual impression that a likelihood of confusion can be safely ruled out (10/05/2011, T-187/10, G, EU:T:2011:202, § 60).
Consequently, a likelihood of confusion can be safely excluded when two conflicting signs, albeit containing or consisting of the same single letter, are stylised in a sufficiently different way or contain a sufficiently different figurative element, so that their different overall graphical representations outweigh the verbal element that they have in common. In the present case, the additional word ‘MENU’ of the contested sign must also be taken into account.
Considering all the above, the opposition must be rejected.
Given that the opposition is not well founded under Article 8(1)(b) EUTMR it is unnecessary to examine the evidence of use filed by the opponent.
The opponent has also based its opposition on the following earlier trade marks:
- EU trade mark registration No 2 943 769 for the figurative mark .
- Spanish trade mark registration No 2 275 764 for the figurative mark .
- Spanish trade mark registration No 2 275 766 for the figurative mark .
- Spanish trade mark registration No 2 275 767 for the figurative mark .
The other earlier rights invoked by the opponent are less similar to the contested mark. These earlier rights are complex figurative marks. They contain further figurative elements and additional words (and colours in the case of the EU trade mark), such as ‘KERN’ or ‘PHARMA’, that are not present in the contested trade mark. Moreover, they cover the same goods. The overall visual impression of the conflicting signs is that they are clearly dissimilar. Therefore, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.
According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.
Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.
According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein.
The Opposition Division
Cristina CRESPO MOLTÓ
José Antonio GARRIDO OTALOA
According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.