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CANCELLATION DIVISION |
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CANCELLATION No 14 469 C (REVOCATION)
Dermavita Company ltd, Corniche Mazraa, General Street, Al Jichy Building (Lebanon Gulf Bank) – 4th Floor, Beirut, Lebanon (applicant), represented by Dimitar Todorov, Boulevard Hristo Botev Nє30, 1. floor, app. 2, 1000 Sofia, Bulgaria and Sylvia Todorova, 3 ‘Hristo Botev’ blvd., fl. 1, office 3, 1000 Sofia, Bulgaria (professional representatives)
a g a i n s t
Allergan Holdings France SAS, Tour CBX, 1 passerelle de Reflets, 92400 Courbevoie, France (EUTM proprietor), represented by Carpmaels & Ransford LLP, One Southampton Row, London, City of London, WC1B 5HA, United Kingdom (professional representative).
On 19/10/2020, the Cancellation Division takes the following
DECISION
1. |
The application for revocation is partially upheld. |
2. |
The EUTM proprietor’s rights in respect of European Union trade mark No 6 547 301 are revoked as from 09/02/2017 for some of the contested goods, namely:
Class 10: Dermal implants, namely, visco-supplementation solutions for filling wrinkles.
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3. |
The European Union trade mark remains registered for all the remaining goods, namely:
Class 5: Pharmaceutical preparations for the treatment of glabellar lines, facial wrinkles, asymmetries and defects and conditions of the human skin. |
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4. |
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REASONS
On 09/02/2017, the applicant filed a request for revocation of European Union trade mark registration No 6 547 301 JUVÉDERM VOLUMA (word mark) (the EUTM). In the notice of revocation the applicant did not specify against which goods its revocation request is directed. However, due to the expression used by the applicant in the cover page of its revocation request ‘we request the EUTM 006547301 to be revoked on the grounds of Art. 51(1)(a) EUTMR’, the Cancellation Division will consider that the present revocation is directed against all the goods covered by the EUTM, namely:
Class 5: Pharmaceutical preparations for the treatment of glabellar lines, facial wrinkles, asymmetries and defects and conditions of the human skin.
Class 10: Dermal implants, namely, visco-supplementation solutions for filling wrinkles.
The applicant invoked Article 58(1)(a) EUTMR.
SUMMARY OF THE PARTIES’ ARGUMENTS AND EVIDENCE
The applicant did not submit arguments together with the revocation application.
The EUTM proprietor replied on 08/06/2017 and 21/07/2017 and commented that the present revocation request forms part of a wider trade mark dispute. It referred to parallel cancellation proceedings C 12 772 and to the documents filed to prove use in the respective case (which it identified for ease of reference and which will be listed further down below, namely exhibits CC1-CC16.9) and filed CE certificates concerning its own products consisting of a combined offering of the pharmaceutical product (hyaluronic acid gel), prefilled syringes, and needles (evidence CC2). In particular it mentioned that the applicant clearly stated in prior proceedings that the proprietor used its JUVEDERM mark for goods in Class 10 (medical devices) although the mark was actually registered for goods in Class 5. In spite of its belief that the proprietor had proved use of its mark in Class 10, the cancellation applicant proceeded to file the present revocation request which, in the proprietor’s believe is an abuse of process and an act of bad faith. Further, it stated that although it is clear that its goods are principally Class 5 products, Class 10 protection is also appropriate.
It further requested either that the Office (i) calls upon the cancellation applicant to withdraw the present cancellation action or (ii) confirms that this cancellation action no longer has any effect. The proprietor further stated that use of its umbrella brand JUVEDERM, also supports the contested registration of JUVÉDERM VOLUMA.
The evidence filed by the EUTM proprietor on 21/07/2017 consists of the following annexes:
1 & 2 Two decisions of the Tribunal de Grande Instance de Paris): 1) Decision in case 17/50241 of 12/01/2017 in which the applicant and its European licensee Aesthetic Services & Development (a Bulgarian company), undertook not to attend the 2017 International Master Course on Aging Science World Congress (‘IMCAS’) in Paris, from 26 to 29 January and 2) Decision No. RG: 17/53887 of 02/06/2017 granting the proprietor a preliminary injunction against the applicant preventing the latter from using the sign JUVEDERM in France on the basis that such use would infringe the registered proprietor’s EU and French registrations of JUVEDERM and would amount to unfair competition. The French Court considered that the goods under the proprietor’s mark are ‘pharmaceutical products administered by injection and devices falling within Class 10 covering apparatus and medical devices, dermal implants, biocompatible products for medical use for reducing wrinkles, artificial skin for surgical use, prosthesis’.
3-6 Evidence regarding some other disputes the proprietor has with the applicant in France, Turkey, Saudi Arabia, Russia or Moldova.
7 A copy of the CE Certificate for JUVÉDERM VOLUMA with Lidocaine, dated 10/07/2015, which states Category: “Product for the restoration of faces volumes.” “Presentation in box of 1 syringe filled up to 2 mL, 2 needles 23G1” and 2 cannulas 18G 70 mm”; “Presentation in box of 2 syringes filled up to 1mL and 4 needles 27G ½”; “Presentation in box of 1 syringe filled up to 2ml, 2 needles 23G1”.
8. Selection of invoices dated 2015 and 2016 from different EU Member States (Austria, Bulgaria, Croatia, Denmark, Finland, France, Greece, Italy, Latvia, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and the United Kingdom) in which amongst other JUVEDERM products there are also JUVÉDERM VOLUMA goods.
9. A pricelist from one of the proprietor’s authorised accounts in the UK dated November 2014. JUVÉDERM VOLUMA and JUVÉDERM VOLUMA with Lidocaine are listed on page 3 (‘Most Popular Items’) and on page 4 (‘Botulins & Fillers’) at GBP 224.10 and 235.31 respectively.
10. An order form for Austrian sales of JUVEDERM products dated 15/01/2015. JUVÉDERM® VOLUMA® mit Lidocain is listed at around EUR 275.
11. Pictures of the product packaging for the JUVÉDERM VOLUMA and JUVÉDERM VOLUMA with Lidocaine products.
12 A selection of informational materials (brochures, leaflets, training materials) relating to JUVÉDERM VOLUMA products, including:
12.1 an information guide for
clinicians about the JUVÉDERM VYCROSS collection, including JUVÉDERM
VOLUMA
,
dated July 2013. This brochure includes technical details about the
product specifications and pictures of the product packaging. It also
includes detailed practical guidance for practitioners regarding the
treatment of patients using JUVÉDERM VOLUMA products.
12.2 an informational brochure for patients dated March 2012 about JUVÉDERM VOLUMA. This includes before and after pictures of a patient who has been injected with JUVÉDERM VOLUMA, as well as some statistics and information about JUVÉDERM VOLUMA, and a picture of the JUVÉDERM VOLUMA product packaging.
12.3 an informational booklet dated July 2013 providing information about the JUVÉDERM VYCROSS collection to German physicians. The booklet contains technical information about JUVÉDERM products for physicians’ purposes, along with details of the product specification and images of packaging.
12.4 pamphlet (in Slovenian)
dated October 2014 providing information about the JUVÉDERM®
range of products, including JUVÉDERM VOLUMA, to Slovenian
physicians and clinics. In particular, the range is promoted with
regard to treatment around the eye area. It is explained that the
pamphlet indicates which JUVÉDERM fillers are best suited to
treating each area around the eye. JUVÉDERM VOLUMA is said to be
best for restoring volume in the centre of the face. It also includes
a table of JUVÉDERM products showing the specification of each and
displaying a photograph of each product’s packaging.
.
12.5 a brochure dated July 2012 providing information about the JUVÉDERM VOLUMA products to Spanish physicians. This includes technical specifications of each product along with a diagram showing which area of the face different formulations of JUVEDERM products, including the JUVÉDERM VOLUMA con Lidocaina product, are best suited to.
12.6 a brochure dated November 2014 providing information about the JUVÉDERM range of products, including JUVÉDERM® VOLUMA®, to Slovenian consumers. JUVÉDERM VOLUMA features on page 11.
12.7 a product catalogue dated January 2017 providing information about the technical specifications of JUVÉDERM products, including JUVÉDERM® VOLUMA® with Lidocaine, in French. It is explained that this includes pictures of the product packaging and diagrams showing the targeted areas of the face.
12.8 a training calendar in German for Austria for the second half of the year 2015. The proprietor explains that this includes details of Allergan training courses for practitioners. JUVÉDERM VOLUMA is part of the VYCROSS range, which is the subject of the training courses whose details are provided on pages 7 & 8. Technical details of JUVÉDERM® VOLUMA® with Lidocaine are given on page 13.
12.9 screenshots of an interactive digital interface dated April 2015 aimed at providing practitioners with information about different products in the JUVÉDERM VYCROSS range, which includes JUVÉDERM VOLUMA. JUVÉDERM VOLUMA is referred to regularly throughout the document. The timeline on page 47 shows that JUVÉDERM VOLUMA was first launched in 2008.
12.10 a product catalogue aimed at French-speaking consumers showing a range of JUVÉDERM products, including JUVÉDERM VOLUMA.
12.11 a presentation dated June 2014 providing practitioners with information about treating the eye area with JUVÉDERM VOLUMA and other products in the JUVÉDERM VYCROSS range and with VISTABEL.
12.12 an informed consent form for Bulgarian patients undergoing JUVÉDERM VOLUMA treatments.
12.13 an informed consent form and questionnaire for Spanish patients undergoing JUVÉDERM VOLUMA treatments.
12.14 screenshots of an interactive digital interface from 2013 or later aimed at providing practitioners with information about different products in Allergan’s facial aesthetics range, including JUVÉDERM, and JUVÉDERM VOLUMA. JUVÉDERM VOLUMA is referred to multiple times throughout the document.
13 Selection of advertisements and advertorials relating to, amongst others, JUVÉDERM VOLUMA products:
13.1 a promotional poster aimed at German-speaking consumers dated June 2014. This poster promotes the JUVÉDERM VYCROSS range, including JUVÉDERM VOLUMA (with Lidocaine), for treatment of the periorbital area.
13.2 an advertisement in Italian for trade magazines dated July 2014. This promotes the JUVÉDERM VYCROSS range, including JUVÉDERM VOLUMA.
13.3 advertorial in the UK Red magazine (monthly circulation 192 437) dated July 2015. It consists of a written feature on the writer’s experience of having JUVÉDERM dermal fillers. VOLUMA (i.e. JUVÉDERM VOLUMA) is mentioned on page 2.
13.4 a commercial feature that appeared in The Times [Raconteur] (monthly circulation 389 409) on 30/07/2015. It includes a written feature on JUVÉDERM® dermal fillers, along with questions and answers about the products, information specifically about JUVÉDERM dermal fillers compared to other brands of dermal fillers, and a short case study. Readers are directed to www.JUVÉDERM.co.uk to find a practitioner. JUVÉDERM VOLUMA is mentioned on page 2.
13.5 an advertisement aimed at the trade which appeared in edition No. 138 (September-October 2013) of the trade magazine DERM ACTU – Dermatologie Actualité, as well as a visual advert featuring JUVÉDERM VOLUMA, the feature includes written feedback from dermatologists Directors of R&D, Biomaterials & Fillers at Allergan, Inc.
13.6 an advertisement dated April 2015 promoting JUVÉDERM dermal fillers to Slovenian consumers. This advertisement features before and after photos alongside promotional information. JUVÉDERM VOLUMA is, the proprietor explains, mentioned as “The lifting effects of the Juvéderm® VOLUMA® filler with lidocaine last up to 18 months.”
13.7 a poster promoting the
JUVÉDERM range of products to Italian consumers. JUVÉDERM VOLUMA
features in the bottom row of product packaging images.
13.8 promotion explaining that Allergan has made the packaging for its VYCROSS collection, which includes JUVÉDERM VOLUMA, more environmentally friendly from January 2015. The JUVÉDERM VOLUMA product packaging is pictured.
13.9 an advertorial that appeared in Marie Claire’s July 2015 UK edition (monthly circulation 198 420). It contains a written feature on JUVÉDERM dermal fillers (mentioning Allergan by name), questions and answers about facial fillers, and mini profiles on women who have used JUVÉDERM dermal fillers in the past. JUVÉDERM VOLUMA is mentioned on the second page.
13.10 an internal presentation from 2012 on the subject of PR and communication, showing media highlights.
14 a series of screenshots of the Dutch JUVÉDERM website from October 2013.
The evidence from other proceedings to which the EUTM proprietor refers is the following:
Case C 12 772
Witness statement of Catherine Curutchet dated 02/05/2016, which sets out the registered proprietor’s proof of use of the mark JUVÉDERM on the registered goods. The following list of evidence is attached:
CC 1 Declaration of Conformity signed on behalf of Allergan to declare that the products listed in the Declaration are manufactured in conformity with the ISO 13485:2003/EN ISO 13485:2012 standard, the dispositions of the Annex II (Full Quality Assurance System) of the 93/42/EEC Directive (14/06/1993).
CC 2 Copies of the European Conformity certificates for JUVEDERM products.
CC 3 A copy of an R&D report about the Pringy site. The report sets out the company's R&D priorities in relation to the JUVÉDERM® products, and states that around 28 million syringes were produced at the site between 2000 and the date of the report.
CC 4 A schedule of the marks Allergan owns – namely more than 220 trade mark registrations of and pending applications worldwide for the JUVEDERM® trade mark and marks containing JUVÉDERM. The EUTM proprietor provides also a table with all its trade marks in the EU (12 trade marks of which 10 are EUTMs).
CC 5 Evidence of the successful outcomes in oppositions against UK and EU similar trade mark applications.
CC 6 Copy of the details of the UK registration No 2 634 644 DERMAJUVE for goods in Class 3. This evidence does not appear on the USB filed later on.
CC 7 A schedule of the JUVÉDERM® domain names and the dates on which they were registered.
CC 8 Selections of photographs of JUVÉDERM® range of products’ packaging, including
CC 9 A document setting out the way in which JUVÉDERM® packaging has evolved from 2008 to 2015 (with the 2010 introduction of the JUVEDERM ULTRA SMILE), boxes and carrier bags bearing the JUVÉDERM® trade mark and its range of products.
CC 10 Documents in English, French and Dutch giving details of a selection of external training courses featuring JUVÉDERM in the UK, France and Benelux.
CC 11 A pricelist dated 2014 from one of the EUTM proprietor’s authorised accounts in the UK. The term JUVÉDERM is listed under the category ‘Fillers’ and is accompanied by other denominations such as Hydrate, Ultra, Voluma, Volbella, Ultra Smile or Volift with Lidocaine.
CC 12 Selection of invoices from 2015, in various languages, from different companies such as Allergan S.A.U, Allergan Services International ltd, Allergan SP.Zoo, Alergan BV, for the sale of JUVEDERM® products to authorised users in 25 EU Member States: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. The mark appears as JUVÉDERM accompanied with other terms such as Ultra Smile, Volbella, Voluma with Lidocaine, Volift with Lidocaine, Hydrate. The prices per unit vary from under EUR 100 to more than EUR 360. The amount is high, and some invoices amount to more than EUR 100.000 for all JUVÉDERM products. Some of these invoices are found in the Attachment 7 submitted on 21/07/2017.
CC 13 -Selection of
marketing material for professionals and general public concerning
JUVÉDERM products in several Member States of the European Union
from April 2011 to March 2016 for different Member States: UK,
Benelux, Bulgaria, Italy, France, Slovenia, Slovakia and Croatia,
Spain, Portugal, Greece, Austria, Germany, Sweden, Denmark. The
evidence is structured by targeted public (professionals or general
public) and territory (EU and by Member States). It contains
brochures for Juvéderm,
,
products accompanied by other denominations such as VYCROSS®,
VOLUMA®, VOLIFT®, VOLBELLA®,
ULTRA, ULTRA SMILE, screenshots of interactive promotional
material of the JUVÉDERM® product family to general
consumers, photographs of Allergan's exhibits at the
Aesthetic & Anti-Aging Medicine World Congress held in
Monte-Carlo, Monaco in March 2012, April 2014, March 2015 (the names
JUVÉDERM® and JUVÉDERM® VOLBELLA®
appear), articles of various magazines and advertisement material
(for UK for example in Woman magazine of February 2015
about JUVÉDERM®, Body Language - The UK &
International Journal of Medical Aesthetics and Anti-Ageing of
March 2015 about JUVÉDERM® VOLIFT™, Instyle – April
2015 - JUVÉDERM® dermal fillers, Marie Claire
2015 (monthly circulation 198 420), The Times [Raconteur]
(with a monthly circulation of 389 409) etc).
-A montage of Allergan's PR-generated media coverage in the European Union during the year 2012 published in a number of the most widely spoken languages of the European Union, namely: English, French, German, Spanish and Italian and information about the total circulation figures for PR-generated coverage in the year 2012 (571 million +).
-A copy of Allergan's internal PR & Communication report on Media Highlights to date (as of 07/09/2012).
CC 14 A copy of the homepage at www.juvederm.eu.
CC 15 Screenshots dated between 2011 and 2016, of Allergan’s JUVÉDERM product websites at www.juvederm.com and www.juvederm.eu from the Internet Wayback Machine.
CC 16 A selection of reviews, reports and endorsements by third parties of the JUVÉDERM® brand (e.g. in Aesthetic Medicine magazine in April 2015 (monthly circulation 15 000 which publicises the introduction of a new product to the JUVÉDERM® family of dermal fillers - JUVÉDERM® VOLIFT™). The section ‘best of the best’ from Harper's Bazaar magazine (monthly circulation 106 089) feature on anti-ageing products mentions JUVÉDERM® dermal fillers. Furthermore, attached there are some pages from a report prepared by Cello Health Insight for Allergan. The report provides details of use of the JUVÉDERM® brand in the EU and the result is that JUVÉDERM® products perform better than competing products on every factor (e.g. overall satisfaction, value for money, patient satisfaction). (See the picture below)
The applicant replied on 26/01/2018. It requested to keep certain commercial data contained in its statement confidential vis-à-vis third parties. The Cancellation Division accepts this request insofar it relates to part of the evidence (specifically the financial and other sensitive commercial information contained in the documents). Therefore, it will describe that part of the evidence only in the most general of terms without divulging any such data or specific information which could breach the terms of the confidentiality request made and accepted. However, this does not apply to evidence which consists of information that is already available to the public, either on the website of the applicant and/or in the mass media (including the internet).
The applicant claimed that the French court order of 12/01/2017 is not relevant for the present proceedings as the parties reached an agreement which is, in fact, that Dermavita has never intended to visit the IMCAS World Congress in Paris. Furthermore, it claimed that the Decision No. RG: 17/53887 of 02/06/2017 of the Tribunal de Grande Instance de Paris is not final being appealed by the parties involved. Likewise the rest of the decisions in other jurisdictions are not final either.
The applicant stated that the accusations of bad faith against it are fully ungrounded and malicious, that the evidence submitted by the EUTM proprietor (e.g. the invoices) shows that there is no use of the EUTM by the proprietor or on its behalf and insisted on the inexistence of a group of companies relationship between the company Allergan Holding France on one hand and Allergan Inc. USA and other Allergan entities on the other hand. The applicant also requested the Office to exclude any materials not translated into the language of the proceedings, English, as well as those documents for which only the translation was filed but not also the original document or the evidence dated outside the relevant period. It further criticised the evidence filed by the EUTM proprietor in the sense that there is no turnover information, no data for the distributed amounts for the promotional materials including catalogues and leaflets, the fact that the goods sold under the mark are gel fillers used to smooth facial wrinkles and to add volume, whereas the certificates of conformity refer to goods which are classified in Class 10 such as needles, syringes, medical devices, injections for which the mark is not registered.
The applicant filed as evidence the following:
Annexes 1-6 Evidence regarding trade mark or infringement proceedings between the parties in France, Turkey, Moldova, Lebanon, USA.
Annex 7 Email dated 21/12/2017 attesting that the product Juvederm Dermal Filler is not authorised in Austria which means that the goods could not be sold in this country.
Annex 8 A statement of a legal representative analysing the decisions and the procedure in the abovementioned French court cases and two appeals to the preliminary decision which is therefore not legally binding.
Annex 9 Information regarding a legal case between the parties in conflict in Beirut.
Annex 10 ‘Complete Official Report’ of 25/12/2016 confirming that the EUTM proprietor has zero turnover for the last four years.
Annex 11 Letter from a lawyer firm confirming that Allergan Industries is owned by one sharesholder Allergan Holdings France SAS.
Annex 12 Information from EURid Whois about juvederm.eu’s proprietor Allergan Limited from UK.
Annex 13 Extract from whois about judvederm.co.uk showing that its proprietor is Allergan, Inc.
Annex 14 Extract from Oxford dictionary regarding the definition for “pharmaceutical” being “a compound manufactured for use as a medicinal drug”.
The proprietor replied on 06/07/2018 denying every allegation of the applicant, insisting on the use of the EUTM by a third party, lack of translation and zero turnovers claims. Further it denies the relevance of some of the documents filed by the applicant like for example the alleged email from the Austrian Agency for Health and Food Safety which confirms that Juvederm is not authorised as a medical product in Austria stating that it does not refer to the contested EUTM at issue and nothing in the email indicates that the Juvederm dermal filler referred to is Allergan’s product. Although the proprietor previously relied on the evidence filed in case 12 772 C it specifies that it relies also on the evidence filed in case 12 664 C namely the following:
C 12 664:
Witness statement of Debra Dahl Condino, Senior Vice President and Chief Intellectual Property Counsel at Allergan since 2014, certifying the continuous use of the EUTM in the EU. It is stated that JUVEDERM ULTRA is part of a family of marks including the mark JUVEDERM, which are owned by the proprietor or Allergan Holdings France SAS, a related company in the Allergan group. The JUVEDERM mark has been used continuously in the EU since at least as early as 2004 and from 2007 to the present day by Allergan. The date of first use of JUVEDERM anywhere in the world was 2001. The following attachments are attached:
DDC1. Copies of the European Conformity certificates for JUVEDERM ULTRA (PLUS), REFINE and FORMA products.
DDC2. Copy of an R&D report about the Pringy site carrying Allergan's research and development.
DDC3. Selection of photographs showing packaging for various products in the JUVEDERM range (including the VOLUMA product introduced in 2010).
DDC4. Schedule of the JUVEDERM registration worldwide.
DDC5. Details of a selection of external training courses featuring JUVEDERM ULTRA SMILE dermal fillers in the United Kingdom.
DDC6. Pricelist from one authorized accounts of the proprietor in the United Kingdom (JUVÉDERM VOLUMA at GBP 224.10 and with Lidocaine at GBP 235.31).
DDC7. Invoices of 2015 for the sale of, amongst others, JUVEDERM (ULTRA – including ULTRA SMILE, VOLUMA (with Lidocaine), HYDRATE, VOLIFT, VOLBELLA) products to authorized users in 17 EU Member States.
DDC8. to DDC 23. Selection of marketing materials for JUVEDERM ULTRA (SMILE), VOLUMA, HYDRATE, VOLBELLA products in several EU Member States (Bulgaria, Italy, the Benelux countries, France, Slovenia, Slovakia, Croatia, Spain, Portugal, Greece, Austria, Germany, Sweden, Denmark and Ireland) from April 2011 to March 2016.
The EUTM proprietor attached to its observations the witness statement of Matthew Brady (associate vice president of intellectual property at Allergan HoldCo US, Inc. and some official documents in which the companies belonging to the Allergan Group are listed as well as a table with the trade marks containing Juvéderm and their owners. Furthermore, some press articles (from metro.co.uk (2015), hufftingtonpost.co.uk (2016), dailymail.co.uk (2017), marieclaire.co.uk (2016) where the mark JUVÉDERM VOLUMA is mentioned are also attached.
On 13/08/2018 the EUTM proprietor filed in cancellation case 14 470 one USB stick (and one copy for the other party) containing the evidence submitted in the two abovementioned cancellation cases (12 772 and 12 664). It requested for such evidence to be taken into account in the present proceedings, as well as in proceedings C 14 468.
On 20/08/2018, the applicant submitted further observations which it also requested to be kept confidential. It filed answers from nine agencies for drugs or Ministries of Health in the EU to the question whether the Allergan’s JUVEDERM products are registered as drug/pharmaceutical products or as medical devices (the answer being the latter one) and highlighted the decision rendered by the EUIPO’s Cancellation Division in the parallel case 12 664 involving the same parties and concerning the revocation of the EUTM No 6 295 638 JUVEDERM ULTRA for the goods in Class 10. The applicant went to a great extent in arguing about the difference between the goods for which the mark has been used and those for which the mark has been registered as listed above in the Reasons section. The applicant agrees with the Cancellation Decision No C 12 664 revoking the EUTM No 6 295 638 JUVEDERM ULTRA for goods in Class 10 but it does not agree with the fact that for the same mark a genuine use was acknowledged for the goods in Class 5. It refers to other jurisdictions (New Zealand and Norway) where Juvederm marks (FORMA and REFINE) in the name of Allergan Inc. were revoked for goods in Classes 5 and/or 10 (decisions issued in March 2018). It further highlighted the fact that the goods of the EUTM proprietor are not registered as pharmaceutical products and have never been a subject of a Marketing Authorisation that is issued under Directive 2001/83/EC by the European competent authorities (European Commission, after opinion of the EMA) or national authorisation (ANSM) to market a drug.
The following documents were attached to the applicant’s submissions:
1. Council Directive 93/42/EEC of 14 June 1993 as amended by Directive 2007/47/EC of the European Parliament and of the Council of 05/09/2007 relating to medical devices;
2. EC certificates for: Juvéderm REFINE, Juvéderm FORMA, Juvéderm ULTRA and Juvéderm ULTRA PLUS, JUVEDERM VOLIFT with Lidocaine, JUVEDERM VOLBELLA with Lidocaine, JUVEDERM VOLIFT Retouch (all medical devices for the treatment of cutaneous depressions and for the restoration of volumes), Juvéderm VOLUMA with Lidocaine (product for the restoration of faces volumes), Juvéderm HYDRATE (medical devices for the prevention of the cutaneous ageing) and the complete Allergan system - EC Design examination (of the product) according to Annex II, section 4 and EC certificate of the complete quality assurance system according to DIRECTIVE 93/42/EEC, issued by the Notified body (LNE EC 0459) - Mandatory procedure to be followed by the Manufacturer before placing on the market according to Directive 93/42 / EEC for medical devices;
3. EC declaration of conformity, issued by the manufacturer Allergan declared under its own responsibility - according to the mandatory procedure to be followed by the manufacturer before placing on the market of its medical devices according to Directive 93/42 / EEC;
4. ANSM (French National Agency for Medicines and Health Products Safety) Report to Parliament (2012) - Review of the rules, applicable to the safety of medical devices and proposals for improvement;
5. ANSM Report for Injectable filling products;
6. Allergan's request for prior authorisation of advertising materials to ANSM (for medical devices, active implantable medical devices and in vitro diagnostic medical devices);
7. Article in French titled ‘Injection de produits de comblement’ ‘Injectable filling products’ - SOF.CPRE (French Society of Reconstructive and Aesthetic Plastic Surgery);
8. Directive 2001/83/EC of 06/11/2001 on the Community code relating to medicinal products for human use;
9. Report in French titled ‘Produits pharmaceutiques dans l’Union européenne Le cadre legal des medicaments à usage humain’ (Pharmaceutical products in the EU – the legal framework for medicinal products for human use’);
10-13. EC Certificates as Example for Facial Implant; EC Certificates as Example for other types of implants; Explanations about different types of facial implants in cosmetic surgery; Example for Body Implants, subdermal implants;
14. Correspondence with National Agencies for drugs/Ministries of Health in different Member States (France, Cyprus, Croatia, Denmark, Luxembourg, the Netherlands, Poland and Sweden) to find out if the JUVÉDERM products are drug/pharmaceutical products or medical devices and that the answer was that they are medical devices;
15. Documents titled ‘Medical device is not drug’ and ‘Injectable filling is not implant’ listing the doctors from different clinics in various Member States who were contacted and who replied that Juvéderm is a dermal filler and not an implant (the correspondence with these doctors is attached as well);
16 Legal consultations for the interpretation of Judgments No. RG: 17/53887 and of 02/06/2017 of the Tribunal de Grande Instance de Paris;
17. A decision issued on 01/03/2018 by the Intellectual Property Office of Norway which decided the partial revocation of the proprietor’s rights in respect to the JUVÉDERM mark No 241 048 for the goods Class 10 (namely for dermal implants, including visco-supplemental medical substances use, intended for filling wrinkles or volume increases) on the reasons of non-use;
18. Decisions of 12/03/2018 of the New Zealand Intellectual Property Office between the same parties concerning the revocation of the marks No 802 735 JUVEDERM REFINE and No 809 130 JUVEDERM FORMA in Classes 5 and 10;
19. Correspondence with National Agencies for drugs/Ministries of Health in different Member States (France, Cyprus, Croatia, Denmark, Luxembourg, the Netherlands, Poland and Sweden) to find out if the JUVÉDERM products are drug/pharmaceutical products or medical devices and that the answer was that they are medical devices;
20. Decision of the EUIPO’s Cancellation Division in the case 12 664.
The Office notified the EUTM proprietor that according to Article 64(2) EUTMDR it should have submitted two USB sticks per each cancellation case and should decide for which of the three cases the submitted USB sticks it wishes to be taken into account. The EUTM proprietor replied on 12/09/2018 that the already submitted USB sticks should be taken into account in the proceedings C 14470 and submitted four more USB sticks for the other two proceedings (including the present one).
On 24/01/2019 the proprietor asked the Office to reconsider its decision to refuse to take into account the USBs with evidence in the present case.
On 11/06/2019, the applicant submitted some additional observations and referred to the most recent decision in Cancellation case C 13 948 concerning the revocation of the EUTM 2 196 822 ‘Juvederm’ registered for goods in Class10. Concerning the respective decision the applicant agrees that the EUTM 2 196 822 Juvederm was revoked for the goods in Class 10. Concerning Class 5 for which the contested mark is registered, it insists again on whether these goods fall within the definition of pharmaceutical preparations or not. The applicant submitted the respective cancellation decision, the judgement of 17/11/2017 of the General Court in case T-802/16 FEMIBION (ECLI:EU:T:2017:818), extract of the European IPR helpdesk fact sheet ‘Intellectual property considerations for medical devices’, extracts from www.ema.europa.eu (European Medicines Agency’s website) concerning ‘Human medicines: regulatory information’, ‘Research and development’, ‘non-pharmaceutical products’, ‘Consultation procedure for ancillary medicinal substances in medical devices’ and communications with the IP Helpdesk confirming that “the injectable dermal fillers should be classified in Class 5 however registering your trade mark under Class 5 does not make it a pharmaceutical product and does not make it compatible for the EU market”. The legal framework for medicines for human use paper was also filed.
On 17/06/2019 the Office notified the parties of the reopening of the procedure and of the admission of the respective evidence on USB which was forwarded to the applicant to comment.
On 27/08/2019 the applicant notified the Office that the USB did not reach the legal office and the Office re-notified the respective device. The applicant submitted WIPO’s examination guidelines concerning the classification of goods and services in international applications under the Madrid System (June 2018), an article from Wikipedia about ‘Regulation of electronic cigarettes and one from Global Tabacco Control about ‘Country laws regulation E-cigarettes: A policy scan’ and the preliminary ruling of 14/06/2011 in case C-308/11, extract from World Health Organisation regarding the Model of a certificate of a pharmaceutical product were also submitted.
On 31/12/2019 the applicant filed other observations in reply to the evidence submitted by the EUTM proprietor on USB. First it requested the Office to reject the respective evidence (which in any case it considers to be irrelevant), as it was filed after the deadline. Furthermore, the applicant considers that the evidence shows the use of a different mark, Juvéderm, and that the nature of the mark as registered was altered (because of the absence of the word VOLUMA which although not existing as such is just allusive). The applicant submitted the decisions of the EUIPO’s Cancellation Division of 19/12/2019 in cases 14 470 and 14 471 in which the marks JUVÉDERM REFINE and JUVÉDERM FORMA were revoked for this particular reason.
In its last submissions of 18/05/2020 the EUTM proprietor further denied the last allegations of the applicant which it considers to be an amalgamation of arguments and documents submitted in other proceedings. The proprietor reiterated that its product is a pharmaceutical product in nature, proper to Class 5, and a type of artificial implant (dermal filler) in purpose, proper to Class 10. While one pharmaceutical component (lidocaine) is immediately absorbed following injection, the other, a hyaluronic acid gel, expands and sits under the skin forming a subcutaneous implant.
The EUTM proprietor filed several EUIPO’s Cancellation and Board of Appeal decisions and submissions before the General Court as follows:
Annexes 1-4 Decision of 14/04/2020 in case R 877/2019-4 issued by the EUIPO’s Board of Appeal in the appeal against Cancellation Decision of 04/04/2019 in case 13 948 JUVEDERM No 2 196 822 in which the respective mark was totally revoked, namely for all the goods in Class 10. The Board of Appeal partly annulled the Cancellation Decision and the respective EUTM was allowed to stay on the register for ‘biocompatible substances for medical purposes for reducing wrinkles’ in Class 10 only. According to the BoA, this term ‘correctly describes what the ‘injectable gel fillers containing hyaluronic acid used to smooth facial wrinkles and to add volume to areas of the face where the skin sags’ for which the contested mark JUVEDERM is used are’ (decision in R0877/2019-4). The EUTM proprietor announced that an appeal is prepared for the remaining goods before the General Court; the proprietor also included the decisions of the Cancellation Division in cases 12 772 and 12 664 (regarding the EUTMs JUVEDERM and JUVEDERM ULTRA respectively) and the EUIPO’s Board of Appeal decisions in which the Board considered that indeed the marks were used for the goods in Class 5;
Annex 5 The EUIPO’s submissions to the General Court in respect of JUVEDERM ULTRA (T-643/19), in which it was ‘clearly confirmed that the proprietor’s JUVEDERM product is a Class 5 pharmaceutical preparation’ ‘The Office submits that the category of ‘pharmaceutical products administered by injection for use in moisturising skin and reducing wrinkles’ covered by the registration of the contested mark has to be interpreted according to its natural and usual meaning (paragraph 21);
Annex 6 The applicant’s submissions before the General Court in case T-643/19;
Annex 7 Print screen from WIPO’s General Remarks regarding the Nice Classification;
Annex 8 Interpretation of dermal fillers by the United States Food and Drug Administration (FDA) which states that ‘Dermal fillers, also known as injectable implants, soft tissue fillers, or wrinkle fillers are medical device implants approved […] for use in helping to create a smoother and/or fuller appearance in the face…’;
Annex 9 Press articles regarding hyaluronic acid fillers: ‘Hyaluronic acid fillers Dermatologic Therapy’, Vol. 19, 2006, ‘Update on Hyaluronic Acid Fillers’ Curr Otorhinolaryngol Rep 2015, ‘Duration of wrinkle correction following repeat treatment with Juvéderm hyaluronic acid fillers’, ‘Use of hyaluronic acid fillers for acquired contour deformities’;
Annex 10 Decision of the Board of Appeal in case R 344/2017-2, where it was held that a product called an EPIPEN, an auto-injector with adrenaline used for the treatment of allergic reactions, is correctly classified in both Class 5 and Class 10 in view of its composite nature: ‘The sole product for which there is evidence on file is an auto-injector with adrenaline/epinephrine for the treatment of anaphylaxis. In this product both the pharmaceutical product it contains and the fact that the apparatus gives the possibility to administer it on your own are fundamental for its use during an anaphylactic shock and its treatment outside a medical centre. The General Remarks of the Nice Classification regarding Goods indicate in section b) that ‘a finished product which is a multi-purpose composite object (e.g., clocks incorporating radios) may be classified in all classes that correspond to any of its functions or intended purposes’. In consequence, the autoinjector with adrenaline/epinephrine for the treatment of anaphylaxis can be correctly classified both in Class 5 and in Class 10 which in principle envisage the protection of goods with different natures and purposes. Furthermore, the fact that the product is protected equally in two classes does not widen the scope of protection as both indications refer to the same good’;
Annex 11 Cancellation decision of 09/08/2018 in case 14 426 regarding the partial revocation of international registration designating the European Union No 1 048 973 ‘easygas’. The registration of EUTM ‘EASYGAS’ for ‘surgical apparatus and instruments: injection syringes for medical purposes, namely for use in ophthalmology’ in Class 10 was upheld based on evidence of use for ‘gas tamponades, used in ophthalmological treatments, which are ready-to-use air gas mixtures being a pre-filled ready-to-use syringe, and are sold together with the syringe and cannulas used in ophthalmological treatments’. The decision of the EUIPO concerning the refusal of EUTM 15 742 174 easyGas was also attached in this annex;
With reference to the decisions referred to in Annexes 10 and 11 above, the EUTM proprietor argues that the fact that the same product is described in both Classes 5 and 10 does not mean that a mark enjoys a broader monopoly; rather the dual nature/function of the product is reflected on the register. In revoking the EUTM proprietor’s rights in Class 10, the Office is effectively denying that dermal fillers are a type of implant, a position which ignores what these products are, and how they are perceived in the marketplace.
Annex 12 High Court of Paris decision of 02/06/2017 in case GR No 17/53887 in preliminary injunction proceedings between the proprietor and the applicant (amongst others);
Annex 13 TRIBUNAL DE GRANDE INSTANCE [High Court] OF PARIS judgement of 21/02/2019 in case no 17/01904-DB3R-W-B7B-SVJK. The proprietor argues that the French court upheld the EUTM proprietor’s French trade mark No 3 061 345 JUVEDERM in a non-use revocation action initiated by the cancellation applicant for the same goods in Class 10 as contested in the case at hand. The EUTM proprietor cites from this decision ‘Syringes containing gel are by definition medical devices. The mere fact that they are dedicated and sold at the same time as the gel that they contain, a commercial practice not based on any structural requirement, does not imply any change in nature or classification’; ‘Furthermore, the gel itself, intended to be injected into the dermis […] is a medical device since it pursues the therapeutic goal of filling wrinkles. It is part therefore […] of the very definition of dermal implant, a classification also used in the notices accompanying each product and by the various players in the market as well as shown by the trade mark registrations of competitors […]’; and ‘Finally, the gel being intended to remain under the skin to fill wrinkles, it is evident that it is a biocompatible substance for medical use for filling the wrinkle’.
General remarks on the evidence
1. The EUTM proprietor informed the Office that it wishes to rely especially on the evidence filed in cases C 12 772 and C 12 664 and on 13/08/2018 it submitted a USB stick with the respective evidence; consequently this is the evidence that will be taken into account. The Cancellation Division notes that the proprietor referred to Exhibits CC1 – CC16.9 filed in case C 12 772 but in the USB filed on 13/08/2018 there is a list of evidence from CC 1 to CC 15. Taking into account this inconsistency and since the acceptance of the missing documents from the USB does not change the outcome of the present decision, the Cancellation Division will take into account the Exhibits CC1 – CC16.9 as filed in case C 12 772.
2. On 18/05/2020 the proprietor also filed some additional evidence (as listed above). Even though, according to Rule 40(5) Commission Regulation (EC) No 2868/95 (in the version in force at the time of filing the application for revocation), the EUTM proprietor has to submit proof of use within a time limit set by the Cancellation Division, this cannot be interpreted as preventing additional evidence from being taken into account where new factors emerge (12/12/2007, T 86/05, Corpo livre, EU:T:2007:379, § 50). The Office has to exercise the discretion conferred on it by Article 95(2) EUTMR (18/07/2013, C 621/11 P, Fishbone, EU:C:2013:484, § 30).
The factors to be evaluated when exercising this discretion are, first, whether the material that has been produced late is, on the face of it, likely to be relevant to the outcome of the proceedings and, second, whether the stage of the proceedings at which that late submission takes place, and the circumstances surrounding it, do not argue against these matters being taken into account (18/07/2013, C 621/11 P, Fishbone, EU:C:2013:484, § 33). The acceptance of additional belated evidence is unlikely where the EUTM proprietor or IR holder has abused the time limits set by knowingly employing delaying tactics or by demonstrating manifest negligence (18/07/2013, C 621/11 P, Fishbone, EU:C:2013:484, § 36).
In this regard, the Cancellation Division considers that the EUTM proprietor did submit some relevant evidence within the time limit initially set by the Office and, therefore, the later evidence filed at the end of the proceedings can be considered to be additional.
For the above reasons, and in the exercise of its discretion pursuant to Article 95(2) EUTMR, the Cancellation Division therefore decides to take into account the additional evidence submitted on 18/05/2020.
After carefully checking these documents, the Cancellation Division’s opinion is that they cannot change the outcome in the present proceedings; they consist of decisions of the EUIPO’s Cancellation Division and the Board of Appeal, and Court decisions in cases involving the same parties or decisions from the Office involving third parties filed also before the Board of Appeal in previous cases. Since their impact on the outcome is of no importance as it will be explained further, the Cancellation Division does not consider it necessary to reopen the present proceedings for another round of observations in particular for the documents filed on 18/05/2020 and to give the applicant the opportunity to reply.
3. The applicant commented on use by third parties. The EUTM proprietor explicitly confirmed in the witness statements that Allergan Holdings France SAS and Allergan Inc. are related entities insofar as they are both wholly owned subsidiaries of Allergan plc. The applicant claims that none of the invoices come from these companies and the evidence for conformity and certification refers to a third company, Allergan. In this regard the Office notes that according to Article 18(2) EUTMR, use of the European Union trade mark with the consent of the proprietor is deemed to constitute use by the proprietor. In principle, the fact that the EUTM proprietor submitted evidence of use of its mark by a third party implicitly shows that it consented to this use (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225). Consequently, the Cancellation Division considers being beyond doubt that the use of the mark made by other companies belonging to the group was with the consent of the EUTM proprietor, and, therefore, such use is equivalent to use by the EUTM proprietor itself. At least the first set of evidence filed by the EUTM proprietor is sufficient to prove this matter.
This conclusion was fully supported by the Board of Appeal in its decision of 19/12/2018 in case R 2630/2017-4, § 26, fully upholding the Cancellation Division decision of 26/10/2017 in case 12 772 C JUVÉDERM.
As correctly reasoned by the Cancellation Division, according to Article 18(2) EUTMR, use of the mark with the consent of the EUTM proprietor is deemed to constitute use by the EUTMR proprietor and the fact that the EUTM proprietor submitted evidence of use of its mark by a third-party implicitly shows that it consented to this use (08/07/2004, T-203/02, Vitafruit, EU:T:2004:225, § 25 confirmed by 11/05/2006, C-416/04 P, Vitafruit, EU:C:2006:310). The Cancellation Division was right to consider beyond doubt that the use of the mark JUVÉDERM by the other Allergan companies was with the consent of the EUTM proprietor and, therefore, equivalent to the use by the EUTM proprietor itself. In this respect the Board notes that use by companies which are economically related to the trade mark proprietor, such as members of the same group of companies (affiliates, subsidiaries, etc.) is presumed to be use of that mark with the consent of the EUTM proprietor and is therefore to be deemed to constitute use by the EUTM proprietor (30/01/2015, T-278/13, Now, EU:T:2015:57, § 38). The Board notes that the EUTM proprietor and the other Allergan companies as they appeared in the proof of use indeed all appear in the United States Securities and Exchange Commission form 10-K as subsidiaries of Allergan plc.
4. The applicant commented on the lack of translation of some of the evidence and that, therefore, this evidence should not be taken into consideration. However, the proprietor is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (according to Rule 22(6) Regulation (EC) No 2868/95 in the version in force at the time of filing the application for revocation, applicable by analogy to cancellation proceedings). Taking into account the nature of the documents which have not been translated and are considered relevant for the present proceedings, namely website printouts, invoices, pictures from different exhibitions and their self-explanatory character, the Cancellation Division considers that there is no need to request a translation in the present case. In any event the evidence contains abundant material in the language of the proceedings.
5. The applicant also argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use for the goods for which the EUTM is registered. The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Cancellation Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.
GROUNDS FOR THE DECISION
According to Article 58(1)(a) EUTMR, the rights of the proprietor of the European Union trade mark will be revoked on application to the Office, if, within a continuous period of five years, the trade mark has not been put to genuine use in the Union for the goods or services for which it is registered, and there are no proper reasons for non-use.
Genuine use of a trade mark exists where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use requires actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, in particular § 35-37, 43).
When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).
In accordance with Rule 22(3) Commission Regulation (EC) No 2868/95 (in the version in force at the time of filing the application for revocation), the indications and evidence required in order to provide proof of use must consist of indications concerning the place, time, extent and nature of use of the trade mark for the relevant goods and/or services.
In revocation proceedings based on the grounds of non-use, the burden of proof lies with the EUTM proprietor as the applicant cannot be expected to prove a negative fact, namely that the mark has not been used during a continuous period of five years. Therefore, it is the EUTM proprietor who must prove genuine use within the European Union, or submit proper reasons for non‑use.
In the present case, the EUTM was registered on 11/12/2008. The revocation request was filed on 09/02/2017. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request. The EUTM proprietor had to prove genuine use of the contested EUTM during the five-year period preceding the date of the revocation request, that is, from 09/02/2012 to 08/02/2017 inclusive, for the contested goods listed in the section ‘Reasons’ above.
Assessment of genuine use – factors
Time of use
The evidence must show genuine use of the European Union trade mark within the relevant period. The majority of the evidence is dated within the relevant period. Therefore, the evidence of use filed by the EUTM proprietor contains sufficient indications concerning the time of use.
Place of use
The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).
The invoices, brochures, marketing materials show that the EUTM has been used in many EU Member States as detailed above when listing the evidence. This can be inferred from the languages of the documents, the addresses of the invoices, and some newspapers or magazines in which the mark appeared during the relevant period. Therefore, the evidence relates to the relevant territory.
Nature of use: use as a trade mark
Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.
In the present case the evidence as a whole indicates that the EUTM is used on invoices, packaging, brochures etc. as a mark to identify some particular pharmaceutical goods. In many of these documents, the mark appears as JUVÉDERM® VOLUMA, JUVÉDERM® VOLUMA® with Lidocaine or as in the following images, i.e. the ‘registered trade mark’ signs TM or ® are placed after each of the words (JUVÉDERM VOLUMA).
From the evidence it is clear that JUVEDERM is the house mark for a large range of dermal fillers in Class 5 whereas the JUVEDERM VOLUMA forms a sub-brand specially formulated for the central area of the face.
Nature of use: use of the mark as registered
‘Nature of use’ further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.
The EUTM proprietor claimed that use of JUVEDERM by itself or in combination with other allusive or non-distinctive terms forming sub-brands also supports the contested registration of JUVÉDERM VOLUMA and the distinctive character of the JUVÉDERM VOLUMA.
Indeed taking into account the nature of the goods and their purpose (a pharmaceutical product specially formulated to restore volume and re-shape areas like the chin and the cheeks) the term VOLUMA is allusive. Furthermore, the EUTM proprietor considers that the distinctive element of its marks is JUVEDERM. The Cancellation Division considers that JUVEDERM is the most distinctive element of some of its sub-brands (e.g. JUVEDERM Ultra 2, 3, 4, SMILE, JUVÉDERM VOLUMA, including the version JUVÉDERM VOLUMA with Lidocaine, Lidocaine being clearly a pharmaceutical denomination without trade mark significance).
In this sense the General Court state the following in its judgement of 25/06/2020 in case T-104/19 JUVEDERM, ECLI:EU:T:2020:283 §42:
42 In that regard, it must be stated that the word elements that were added are only minor additions in relation to the term ‘juvéderm’, which is the distinctive element in those combinations of words. As EUIPO points out, the words that were added, such as ‘ultra’ or ‘voluma’, are ancillary, because they refer to the characteristics of the goods, such as the extraordinary effects (ultra) or the volume (voluma). Furthermore, the applicant does not put forward any argument in that regard, because it confines itself to stating that ‘the word [“juvederm”] is never used alone for designating a product placed on the market’. (emphasis added)
Be that as it may, from the evidence (e.g. invoices, articles, brochures) it is clear that the proprietor genuinely used not only the expression JUVEDERM (which as explained is undoubtedly the house mark), but also the expression JUVÉDERM VOLUMA, the latter either in the form it was registered (as a word mark) or in a figurative form, most commonly as depicted above in the “Nature of use: use as a trade mark” section, especially in brochures and on the packaging. The use of the mark in its figurative form is in accordance with Article 18 EUTMR.
Extent of use
Concerning the extent of use, it is settled case-law that account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (e.g. 08/07/2004, T 334/01, Hipoviton, EU:T:2004:223, § 35). Furthermore, the Court has held that ‘[u]se of the mark need not … always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market’ (11/03/2003, C 40/01, Minimax, EU:C:2003:145, § 39). The assessment of genuine use entails therefore a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use. The evidence cannot be assessed in absolute terms but must be assessed in relation to other relevant factors. In this respect, the evidence should be viewed in relation to the nature of the goods and services and the structure of the relevant market (30/04/2008, T 131/06, Sonia Sonia Rykiel, EU:T:2008:135, § 53).
The nature of the goods (injectable dermal fillers containing hyaluronic acid that are used to smooth facial wrinkles and to add volume to areas of the face where the skin sags) and the character of the market for these goods as well as the fact that JUVÉDERM VOLUMA products can only be legally prescribed and administrated to patients by trained and qualified physicians and medical practitioners or under their supervision must be taken into consideration. Be that as it may, it emerges from the evidence submitted by the EUTM proprietor that the contested mark was extensively used within the relevant period and in the majority of the EU Member States. However, this conclusion applies only in relation to some goods for which the EUTM is registered.
It is reminded that the obligation to produce evidence of genuine use of a trade mark is not designed to monitor the commercial success or to review the economic strategy of an undertaking. It may be economically and objectively justified for an undertaking to market a product or a range of products even if their share in the annual turnover of the undertaking in question is minimal (judgment of 08/07/2004, T-334/01, Hipoviton, EU:T:2004:223, § 49). In any event, the evidence shows turnover of goods sold under the mark and the fact that the sales were not made by the proprietor is irrelevant as explained above.
Use in relation to the registered goods
Article 58(1)(a) EUTMR and Rule 22(3) Commission Regulation (EC) No 2868/95 (in the version in force at the time of filing the application for revocation) require that the EUTM proprietor proves genuine use for the contested goods for which the European Union trade mark is registered, namely:
Class 5: Pharmaceutical preparations for the treatment of glabellar lines, facial wrinkles, asymmetries and defects and conditions of the human skin.
Class 10: Dermal implants, namely, visco-supplementation solutions for filling wrinkles.
Both parties argued extensively on this particular criterion (mainly regarding the nature of the goods in Classes 5 and 10) and each filed evidence to support its arguments. The proprietor claimed that the opposing party has even acknowledged the use of the contested mark for goods in Class 10. Even if the applicant’s arguments would be in the sense of the proprietor's interpretation, the Office has to make its own evaluation of the evidence of use submitted. This means that the probative value of the evidence submitted is evaluated independently of the observations submitted by the applicant in this respect. Assessment of the relevance, pertinence, conclusiveness and efficacy of evidence lies within the discretion and power of judgment of the Office, not the parties, and falls outside the adversarial principle which governs inter partes proceedings (decisions of 01/08/2007, R 201/2006-4, OCB, § 19; 14/11/2000, R 823/1999-3, SIDOL).
A declaration by the applicant concluding that use has been proved does not, therefore, have any effect on the Office’s findings. It is solely up to the Office to carry out the procedure and evaluate whether the evidence submitted by the proprietor is to be regarded as of sufficient probative value.
This is not contrary to Article 95(1) EUTMR, which stipulates that in inter partes proceedings the Office is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought. However, although the Office is bound by the facts, evidence and arguments provided by the parties, it is not bound by the legal value that the parties may give thereto. Hence, the parties may agree as to which facts have been proved or not, but may not determine whether or not these facts are sufficient to establish genuine use (decisions of 01/08/2007, R 201/2006-4, OCB, § 19; 14/11/2000, R 823/1999-3, SIDOL, § 20; 13/03/2001, R 68/2000-2, NOVEX PHARMA).
The Cancellation Division considers the issue is in fact quite straightforward and underlines that the same debate was previously settled in several parallel cases by the Cancellation Division. Furthermore, at least as regards the contested goods in the case at issue (Class 5 and 10), the respective decisions of the Cancelation Division were upheld by both the Board of Appeal of the EUIPO and the General Court. In this respect a short history of the trade mark dispute between the parties is, in the Cancellation Division’s view needed, due to the identity between the contested goods in this case and the goods of the EUTMs invoked in the previous related cases:
Cancellation No 12 664 C
The applicant requested the revocation of EUTM No 6 295 638 for the word mark ‘JUVEDERM ULTRA’ registered for the following goods:
Class 5: Pharmaceutical products administered by injection for use in moisturising skin and reducing wrinkles;
Class 10: Dermic implants, including visco-supplementation substances for medical use, intended for wrinkle filling or volume increasing.
By decision of 31/07/2018, the Cancellation Division partially upheld the application for revocation, namely for the goods in Class 10. The application was rejected for the goods in Class 5. Both parties appealed. By decision of 18/07/2019, in cases R 1655/2018-4 and R 1723/2018-4, the Board dismissed both appeals. The Board concluded that the injectable dermal fillers for which genuine use of the earlier mark was proven were covered by the goods in Class 5 and not by those in Class 10 for which the contested mark was registered. It followed that genuine use was proven for the goods in Class 5, but not for those in Class 10 (emphasis added).
As it can be seen, the goods of the contested mark in the present case are either included in or include the goods of the contested mark in case 12 664, so they are considered identical.
Cancellation No 12 772 C
The applicant requested the revocation of EUTM No 5 807 169 for the word mark ‘JUVÉDERM’ registered for the following goods:
Class 5: Pharmaceutical products administered by injection for use in moisturising skin and reducing wrinkles.
By decision of 26/10/2017, the Cancellation Division rejected the application for revocation. The appeal filed by the cancellation applicant was dismissed by the decision of the Board on 19/12/2018, R 2630/2017-4. The Board concluded that the injectable dermal fillers were covered by the goods in Class 5 for which the contested mark was registered and that genuine use for these goods was proven. The appeal before the General Court was rejected by the judgement of 25/06/2020 in case T-104/19 (ECLI:EU:T:2020:283). An appeal is currently pending before the Court of Justice (C 400/20-P).
As it can be seen, the goods of the contested mark in the present case include the goods of the contested mark in case 12 772, so they are considered identical.
The Cancellation Division wishes to underline the findings of the General Court in its judgement of 25/06/2020 in case T-104/19 JUVEDERM (ECLI:EU:T:2020:283).
26 First, it is apparent, in essence, from Article 28(1) of Regulation No 207/2009 (now Article 33(1) of Regulation 2017/1001) that, for the purposes of the registration of an EU trade mark, goods and services are to be classified according to the Nice Classification.
27 Secondly, as EUIPO submits, although the national and EU legislative measures referred to by the applicant are of primary importance for the sector as they safeguard the process of manufacture, labelling and distribution of medicinal products, they do not necessarily have an influence on the way in which the goods and services are classified in the Nice Classification. In that regard, the essential function of the mark should not be confused with the other functions that the mark may also fulfil, such as that of guaranteeing the quality of the goods in question (see, to that effect, judgment of 7 June 2018, Schmid v EUIPO — Landeskammer für Land- und Forstwirtschaft in Steiermark (Steirisches Kürbiskernöl), T‑72/17, EU:T:2018:335, paragraph 52 and the case-law cited).
28 Consequently, the classification of goods according to other rules of European Union law, such as Directive 93/42, is not in principle decisive with regard to their classification for the purposes of the registration of an EU trade mark.
The Court’s ruling addresses the disagreement between the parties regarding the difference between the classification of the EUTM proprietor’s products according to the EU legislation on medical devices and the classification of the goods of the EUTM according to the Nice Classification, arguments which apply mutatis mutandis in the present case.
In particular, the EC certificates for conformity might refer to the goods of the proprietor as medical devices or instruments, but this classification should not be confused with the trade mark classification of goods and services which is done according to the Nice Classification. The Cancellation Division underlines, for example, that according to the Nice Classification, Class 10 includes artificial implants whereas living tissues used as surgical implants are classified in Class 5. Nevertheless, all the injectable dermal fillers as the ones for which the contested mark is used are classified in Class 5 and not in Class 10 (emphasis added). In other words, the fact that under the EU Directives for CE marking, the proprietor’s injectable dermal fillers are considered to be medical devices or instruments cannot be accepted as justification for a genuine use of the EUTM’s registered goods in Class 10, since according to the Nice Classification such dermal fillers are classified in Class 5. Such distinction between the Class 5 and Class 10 goods has been properly explained above also by the Board of Appeal in its decision of 14/04/2020 in case R 877/2019-4 (mentioned in detail underneath) and it is clear also in the Nice Classification. Consequently, no evidence proves that the goods for which the mark JUVÉDERM VOLUMA was used are dermic implants, but rather refers to goods in Class 5.
Cancellation 13 948 C
By decision of 04/04/2019 the Cancelation Division revoked the EUTM 2 196 822 JUVEDERM for all the goods in Class 10 medical and surgical apparatus and instruments, dermal implants, biocompatible substances for medical purposes for reducing wrinkles, artificial skin for surgical purposes, prostheses. (emphasis added)
In its decision of 14/04/2020 in case R 877/2019-4, the Board of Appeal of the EUIPO partially upheld the Cancellation Decision. The Board decided that the mark was used for biocompatible substances for medical purposes for reducing wrinkles. EUTM 2 196 822 JUVEDERM remained revoked for the rest of the goods in Class 10, including for dermal implants (emphasis added). Quoted underneath is the relevant paragraph from the Board’s decision:
62 As regards the successful revocation request, one exception has to be made, namely for the goods ‘biocompatible substances for medical purposes for reducing wrinkles’. This correctly describes what the ‘injectable gel fillers containing hyaluronic acid used to smooth facial wrinkles and to add volume to areas of the face where the skin sags’ for which the contested mark ‘JUVERDERM’ is used are. The fact that these goods appear in the contested mark under Class 10, while their correct classification should be in Class 5, is not a reason as such to allow the application for revocation for these goods as the classification of goods and services exclusively serves administrative purposes.
As it can be seen, the goods in Class 10 of the contested mark in the present case are included in the goods of the contested mark in case 13 948 (dermal implants) because of the use in its specification of the term ‘namely’, restricting in this way the list of goods only to those specified after the respective term (i.e. only to visco-supplementation solutions for filling wrinkles).
The Cancellation Division refers further to the findings of the Board of Appeal in the abovementioned decision of 14/04/2020 in case R 877/2019-4 which are equally applicable in the present case:
25 Nevertheless, the cancellation applicant stresses that products in Class 10 are all artificial devices as follows from the Explanatory Note: ‘Class 10 includes mainly surgical, medical, dental and veterinary apparatus, instruments and articles generally used for the diagnosis, treatment or improvement of function or condition of persons and animals. This Class includes, in particular: therapeutic and prosthetic articles and devices for implantation composed of artificial or synthetic materials […]’. This includes products such as breast implants, pacemakers etc. This is, with no doubt, not what the JUVEDERM products are; they are not artificial.
26 JUVEDERM products are dermal fillers containing natural substances, normally contained in the human body, i.e. hyaluronic gel. The natural substances are to be injected and afterwards absorbed by the human body. This is the only nature and the only function they have as evidenced by the proof of use submitted by the EUTM proprietor such as advertising materials and product labels. The EUTM proprietor presents its products as ‘Non-surgical aesthetic treatments’ with ‘a biodegradable substance naturally present in the body’. It states that ‘Hyaluronic acid used in Juvederm is a non-animal substance, synthesised in the laboratory, which ensures very natural and long-lasting aesthetic results. It is a resorbable product whose aesthetic effects are reversible’.
27 It follows that the JUVEDERM products do not have a dual nature and function as argued by the EUTM proprietor. They are clearly not dermal implants and clearly do not have any artificial element. They are dermal fillers containing natural and absorbable substance. They belong only to Class 5, by their purpose and function as well as by their express classification in the Alphabetical List.
47 (…) the JUVEDERM injectable dermal filler is not a ‘dermal implant, which is a type of artificial implant’ falling under Class 10. According to the Explanatory Note of the Nice Classification, Class 10 includes surgical, medical, dental and veterinary apparatus, instruments and articles generally used for the diagnosis, treatment or improvement of function or condition of persons and animals. It includes in particular therapeutic and prosthetic articles and devices for implantation composed of artificial or synthetic materials such as surgical implants composed of artificial materials, artificial breasts etc. This is simply not what the JUVEDERM product is.
48 It is not an apparatus, instrument, article or device for surgical implantation. It is not composed of artificial or synthetic materials. On the contrary, it is a soft-tissue injectable dermal filler containing hyaluronic acid which is naturally produced as the EUTM proprietor’s own evidence confirms.
49 The product leaflet as copied in the statement of grounds of appeal describes the product as a physiological solution of cross-linked hyaluronic acid which is not of animal origin. The scientific journal article (Annex 5) explains that hyaluronic acid is a naturally occurring linear polysaccharide found in the human dermis having viscoelastic properties. Cross linking native hyaluronic acid forms larger, bonded molecules with similar biocompatibility. These bonded molecules made of natural material form the hyaluronic acid gel fillers, such as the JUVEDERM product, for soft tissue augmentation. How these bonded molecules work is explained by the EUTM proprietor with reference to some random pictures it took from a video which can be watched from the link included in its statement of grounds. What the full video shows is that collagen (a protein) ensures the structural integrity of the skin. Fibroblast stretches out through the collagen network. During the ageing process the collagen fibers deteriorate and fibroblast activity impairs leading to a decrease in collagen production. The gel (i.e. the bonded molecules made of natural material) injected in the deep dermis cause an immediate filling effect and in addition regenerates the fibroblast collagen network which helps the skin to regain structural support and elasticity. In the advertisement material for the JUVEDERM products reference is made to the ‘thorough tissue integration’, ‘non-surgical aesthetic treatments with a biodegradable substance naturally present in the body’ being ‘resorbable’ and ‘whose aesthetic effects are reversible’ (see, inter alia, Exhibit CC12 and Annex 4).
50 All this evidence shows that the JUVEDERM product is a gel composed of bonded molecules made of natural material. These molecules activate a, temporarily, augmentation and reactivation of the natural structure of the skin in order to regain elasticity which decreases during the ageing process. This, by no means can be defined as an artificial implant which would fall under Class 10.
As explained, JUVÉDERM VOLUMA is a pharmaceutical product in the form of prefilled syringes (obviously with needles included to be used with the syringes) specially formulated to restore volume and re-shape areas like the chin and the cheeks. As also explained above and in many other previous decisions of the EUIPO’s Cancelation Division and Board of Appeal, such goods belong to Class 5 because the purpose of buying them is in fact the use of the pharmaceutical product contained by those syringes and not the use of the syringes and needles as such with other products. The medical instruments/devices have the only purpose of storing the medication and, after they are purchased, they form the means by which the pharmaceutical preparation is inserted into the skin. The syringes as such indeed belong to Class 10 but only when they are sold and purchased empty with the intention to be used with different pharmaceutical preparations.
The above conclusion was also upheld by the Board of Appeal in its decision of 14/04/2020 in case R 877/2019-4 (paragraph 60). The mentioned decision was also addressing the EUTM proprietor’s arguments invoking the decisions of the Cancellation Division in case 14 426 C, EASYGAS, and of the Board of Appeal in case R 344/2017-2, EPIGEN / EPIPEN (annex 10 last submissions of the EUTM proprietor):
60 Just for the sake of completeness the Board nevertheless refers, and fully endorses, the findings in the contested decision that since the pre-filled syringes in question are only meant to store the JUVEDERM dermal filler and are not sold and purchased empty with the intention to be used (or re-used) with different pharmaceutical preparations, they do not belong to Class 10. In this respect, the Board repeats that ‘pre-filled syringes for medical use’ appear under code 050462 in the Alphabetical List of goods in Class 5 and that TMclass, being the leading tool for classification purposes of EUTMs, also classifies the goods ‘filled syringes for medical purposes [containing pharmaceuticals]’ and ‘syringes sold filled with {indicate pharmaceutical contained in syringe}’ in Class 5. The fact that the French Court in its decision of 21 February 2019 decided otherwise is not binding. The same applies to previous Office practice as laid down in the decisions of the Cancellation Division in case 14 426 C, EASYGAS, and of the Board in case R 344/2017-2, EPIGEN / EPIPEN (see the EUTM proprietor’s Annexes 6 and 7). Moreover each case has to be decided on its own merits and as regards these two decisions from the Office it should also be mentioned that the nature of the goods for which use was proven and the nature of the goods for which the marks were maintained differed from those in the case at hand (emphasis added).
Consequently, the contested mark was genuinely used only for the goods in Class 5 and no genuine use can be acknowledged for the goods in Class 10.
As for the judgments of the Tribunal de Grande Instance du Paris, it is noted that, as far as can be deduced from the translated parts, the decisions are not based on the genuine use of the mark JUVEDERM and concern actually completely different issues: i) an interim measure, ii) an interlocutory infringement, or a likelihood or imminence of counterfeiting and in which they were provided only provisional measures of prohibition against Dermavita concerning goods in Class 3 (decision of 02/06/2017) and iii) a pre-trial judgement in an action for infringement filed by Allergan (the EUTM proprietor) against Dermavita (the applicant) in which it was requested the stay of the respective proceedings in view of the pending decisions of the Cancellation Division in the present case and other parallel proceedings. In addition, the judgement in the second case (decision of 25/05/2018) is made without having to prejudge the substance of the proceedings. Consequently, the abovementioned cases cannot influence the Cancellation Division in deciding whether or not the contested EUTM has been genuinely used in the EU and neither can constitute reasons for non‑use.
The last decisions of the French court filed by the EUTM proprietor in its last submissions (Annexes 12 and 13) are equally irrelevant. As regards the findings of the Tribunal de Grande Instance [High Court] of Paris in its judgement of 21/02/2019 in case no 17/01904-DB3R-W-B7B-SVJK it is reminded first that the Cancellation Division is not bound by the National Court decisions and, second, that its opinion, which is contrary to the French Court, was already explained above. The opinion of the Cancellation Division regarding all these judgements finds support in the Board of Appeal decision of 14/04/2020 in case R 877/2019-4 quoted underneath:
52 Furthermore, the EUTM proprietor refers to four French court decisions as regards disputes between the same parties. The first one dated 2 June 2017 (see paragraph 6 above), concerns a preliminary injunction against the cancellation applicant preventing it from using the sign ‘JUVEDERM’ for goods in Class 3, based on the EUTM proprietor’s earlier EUTM and French rights for the mark ‘JUVEDERM’. The validity of the earlier marks for goods in Class 10 was not an issue. Already for this reason, this decision is not relevant.
53 With the second French court decision dated 25 May 2018 (see paragraph 7 above), the court rejects the cancellation applicant’s stay of the infringement proceedings initiated by the EUTM proprietor based on its earlier EUTM and French rights for the mark ‘JUVEDERM’ in view of the revocation proceedings No 12 772 C before the EUIPO (see paragraph 36 above) and the subject revocation proceedings. According to the court, there was no good reason to stay the proceedings and it referred in this respect to the decision of the Cancellation Division in revocation proceedings 12 772 C by which the contested EUTM was maintained for goods in Class 5. The validity of the earlier marks for goods in Class 10 was not an issue. Already for this reason, this decision is not relevant.
54 The third French court decision dated 21 February 2019 (see paragraph 21 above), concerns the non-use revocation action initiated by the cancellation applicant against the EUTM proprietor’s French trade mark registration No 3 061 345 ‘JUVEDERM’ for the same goods as those in the case at hand. As in the EUIPO cancellation and appeal proceedings, use of the French trade mark was proven for ‘single-use syringes pre-filled with hyaluronic acid gel intended to be injected into the dermis to fill skin depressions’. The court decided: (i) that syringes containing gel are by definition medical devices (ii) the gel itself is a medical device and part of the definition of dermal implant, a classification also used in the product description and by other players in the market as well as shown by trade mark registrations of competitors (iii) the gel being intended to remain under the skin to fill wrinkles is evidently a biocompatible substance for medical use for filling wrinkles. The mark was maintained in Class 10 for ‘medical and surgical instruments, dermal implants, biocompatible substances for medical use as wrinkle fillers’. It was rejected for ‘artificial skin for prostheses and surgical use’.
55 This third decision is not relevant for different reasons. First, the reasoning under (i) and (iii) above does not concern arguments relied on by the EUTM proprietor in this appeal. Second, the reasoning that the product would be a dermal implant in the sense of Class 10 is not correct, see the above reasoning in paragraphs 40 to 50. In this respect it should be noted that the Board is not bound by decisions of national courts. The lawfulness of decisions of the Board of Appeal must be assessed solely on the basis of the EUTMR as interpreted by the EU judicature independently of any national system.
56 The last French court decision referred to was rendered on 27 February 2020, see paragraph 30 above. It concerns a second application from the cancellation applicant to stay the EUTM proprietor’s infringement proceedings with reference to the revocation proceedings No 13 948 C (subject of this appeal) in which the Cancellation Division allowed the application for revocation for goods in Class 10. The French Court dismissed the claim to stay the proceedings reasoning that the Cancellation Division based its decision on an incorrect assessment of the classification of products in Classes 5 and 10 and that main competitors have chosen to register similar products in both Classes 5 and 10. The French court further reasoned that the decision of the Cancellation Division would be contrary to recent case-law of the Boards of Appeal and the earlier French decisions. The EUTM proprietor argues that it would go against the spirit of EU trade mark law were the Board to reach a conclusion opposite to the French courts on the validity of its registration for goods in Class 10.
57 This fourth decision is equally irrelevant. First of all, the validity of the earlier marks relied on in the infringement proceedings is not the issue. Moreover, it is not the French court but this Board of Appeal which has the judicial power to decide whether the decision of the Cancellation Division in the subject revocation proceedings was right or wrong and this is to be based on the EUTMR as interpreted by the EU judicature as it was also applied by the Cancellation Division and the Board in a consequent way in the earlier decisions rendered (see paragraphs 36 and 37 above). The argument that the Board not following an, incorrect, decision of the French court would go against the spirit of EU trade mark law is the world upside down.
Conclusion
It follows from the above that the EUTM proprietor has not proven genuine use of the European Union trade mark for the following goods, for which it must, therefore, be revoked:
Class 10: Dermal implants, namely, visco-supplementation solutions for filling wrinkles.
The EUTM proprietor has proven genuine use for the remaining contested goods of Class 5; therefore, the application is not successful in this respect.
According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 09/02/2017.
COSTS
According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.
Since the cancellation is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.
The Cancellation Division
Oana-Alina STURZA |
Ioana MOISESCU |
According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 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.
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