CANCELLATION No 14 550 C (INVALIDITY)

Particle Measuring Systems, Inc., 5475 Airport Boulevard, Boulder Colorado 80301, United States of America (applicant), represented by Forresters IP LLP, Rutland House, 148 Edmund Street, Birmingham B3 2JA, United Kingdom (professional representative)

a g a i n s t

Interservice Holding GmbH, Schafwäsche 8, 71296 Heimsheim, Germany (EUTM proprietor), represented by Dr. Hahn & Kollegen, Zeppelinstr. 128, 70193 Stuttgart, Germany (professional representative).

On 09/11/2018, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is rejected in its entirety.

2. The applicant bears the costs, fixed at EUR 450.

REASONS

The applicant filed an application for a declaration of invalidity against European Union trade mark No 9 332 917 PMS (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 5 Disinfectants, not for medical purposes.

Class 9 Measuring apparatus for clean room monitoring for all liquids and gases, and vacuum and particle size analysis; Measuring apparatus for determining TOC (total organic carbon) and DOC (dissolved organic carbon), apparatus and instruments being systems for measuring and depleting electrostatic charges, and being collection and monitoring systems for microbiological impurities.

Class 37 Maintenance of measuring apparatus for clean room monitoring for all liquids and gases, and vacuum and particle size analysis, and of measuring apparatus for determining TOC (total organic carbon) and DOC (dissolved organic carbon), apparatus and instruments being systems for measuring and depleting electrostatic charges, and being collection and monitoring systems for microbiological impurities.

Class 41 Training in the use of systems for measuring and depleting electrostatic charges, and in the use of collection and monitoring systems for microbiological impurities.

Class 42 Creating programs for measuring and analysis systems; Consultancy with regard to the use of systems for measuring and depleting electrostatic charges, and in the use of collection and monitoring systems for microbiological impurities.

The applicant invoked Article 59(1)(b) EUTMR (the contested EUTM was filed for registration in bad faith) as well as Article 60(1)(b) EUTMR in connection with Article 8(3) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the contested mark was applied for on 25/08/2010 by its original owner FB Beteiligungs GmbH (hereinafter FB) a company having a clear link with the current owner of the EUTM and with the applicant’s former exclusive distributor for Germany and Austria from 1985 until 2011, PMT Partikel Messtechnik GmbH (hereinafter PMT). The applicant claims that this application by FB was done to provide a smokescreen and to hide the identity of the true owner – PMT, because PMT knew that it was not entitled to file the application itself, by virtue of the distribution agreement it had with the applicant. The application was filed around the time that the relationship between the applicant and PMT was deteriorating. In short, the filing was a clear act of bad faith.

The applicant explains that its corporate name is very commonly abbreviated to its three initials – PMS – and this abbreviation is widely used to refer both to the company, and to one of its key trade marks. FB also filed for another EUTM No 9 353 947 which is very similar to the sign used by PMT and by the current EUTM proprietor . The applicant filed on 22/12/2016 a revocation action against EUTM No 9 353 947  (case C 14 232) considering that this mark was never filed by its owner with the intention to be used on the market since the same owner was already the proprietor of the mark PMT (EUTM No 4 294 286) for exactly the same list of goods and services as the contested EUTM.

It further acknowledges that the original applicant (FB) was not itself an agent or representative of the applicant. When the applicant’s own EUTM (PMS No. 14 534 549) was opposed by FB, the applicant had never heard of them, and was unable to find any connection with their erstwhile distributors, PMT. It was only when the contested EUTM was assigned by FB to the current EUTM proprietor (Annex 3 below) that the connection was made clear. The applicant believes that the original applicant’s parallel registration of a logo near-identical to that of PMT reinforces that connection.

In support of its observations, the applicant filed the following evidence:

1. A ‘Creditreform’ (Company report premium) extract, dated 20/10/2016 about Interservice Holding GmbH (the EUTM proprietor) established on 01/10/2003 and having as CEOs Dirk Jessen (since 2009) and Jörg Dressler (since 2008).

2. A ‘Creditreform’ extract, dated 20/10/2016 about the company FB established in 2002, the original owner of the EUTM having Raimund Baumann as manager since 2003.

3. Letter dated 04/10/2016 from the FB’s and current EUTM proprietor’s representative, informing the Office about the assignment of the EUTM to the current EUTM proprietor.

4. to 8. Information about the applicant’s company by means of printouts from different sections of the applicant’s website pmeasuring.com. PMS appears as an acronym for Particle Measuring Systems which “is the inventor of laser based –particle counting” and as being “established in 1972” currently describing itself as a “global leader for micro-contamination monitoring equipment improving the performance of clean manufactures in the semiconductor and pharmaceutical market”.

9. to 16. A summary of the applicant’s registrations and pending applications for the mark PMS, a copy of the Notice of Allowance dated in 2016 before the USPTO and details of the Mexican, South Korean, Singaporean and Chinese “PMS” registrations (annexes 11-14) as well as a fuller list of the applicant’s trade marks (and patents) as available from their website (annex 15), from which it can be seen that the full name (Particle Measuring Systems) is also registered, and pending in several jurisdictions and an internal schedule of the applicant’s ‘PARTICLE MEASURING SYSTEMS’ marks (annex 16).

17. A copy of the applicant’s Response dated 2015 to the USPTO Office’s Action regarding the mark PMS’ amendment of the list of goods and services and the descriptiveness of the sign invoked by the USPTO.

18. E-mail dated 20/12/2016 from John Mitchell, the CEO of the applicant sent to members of the applicant’s US legal counsel. The e-mail states that the applicant had a German exclusive distributor for Germany and Austria called PMT, from at least as early as 1985 or thereabouts. The distributor agreements were ‘evergreen’, in that they were automatically renewed unless formally terminated.

19. A copy of the 1999 (referred to in Mr Mitchell’s e-mail) Distribution agreement between the applicant and PMT as distributor. PMS is used as a short form for the applicant’s company.

20. A ‘Creditreform’ extract, dated 20/10/2016 about the PMT’s company being represented since May 2008 by Dirk Jessen and Jörg Dressler (same CEOs as the current EUTM proprietor). The company’s shareholder is the current EUTM proprietor.

21. Colour print of the logo shown in the top right hand corner of the home page of PMT.

22. Letter dated 04/04/2011 from Jörg Dressler and Dirk Jessen (of PMT) to John Mitchell (the applicant’s manager) showing, in the applicant’s opinion a) the continued nature of the agreement and b) its termination in 2011 or thereabouts.

23. -25 Details of EUTM No. 4 294 286, PMT, international registration No. 1 102 194 PMT designating Switzerland and the USA (having as basis the previous EUTM) and a list of ‘PMT’ marks all of them owned by the EUTM proprietor. The applicant claims that this proves that the original / current owners did not have any intention to use the mark PMS. The list of goods and services of the EUTM No. 4 294 286 PMT is identical to that of the contested EUTM, PMS.

26. Details for international registration No. 778 462 (filed in 2002) for a stylised (red / black) version of the letters PMT, which is identical to that used by the applicant’s erstwhile German distributors.

27. A copy of the applicant’s representative’s letter of 29/11/2016 to the current (and original owner’s) EUTM proprietor’s representative referring to the likelihood of cancellation actions being filed, on bad faith / unauthorised agent or representative grounds to which no reply (of any sort) has been received.

28. Details of the applicant’s (allowed, shortly to register) US trade mark application – No. 86 557 810.

29. A copy of the reasoned grounds (dated 14/06/2016), in Opposition No. 2 644 949, filed by FB against the applicant’s EUTM No. 14 534 549, PMS and based on the currently contested EUTM showing that FB considered that the goods and services covered by the applicant’s mark are identical or similar.

30. Extract from the USPTO’s own publication ‘Basic Facts about Trademarks’ proving that the USA recognises unregistered trade marks and they are enforceable against infringers.

31. PMS / PMT Joint Customer Survey dated 2005 a customer satisfaction survey, conducted jointly by the applicant and PMT. The mark ‘PMS’ features throughout the document.

32. A 1999 product brochure, for the PMS ‘Model Airnet’ sensor. PMS is referred to three times.

33. Letter from the (then) Vice President (Marketing), informing customers of end of service dates. PMS is referred to and the document refers to end of service dates between 2006 and 2009.

34. February 2008 Notification of Product Obsolescence: ‘PMS’ and ‘PMS protocol’ are referred to.

35. August 2007 letter, referring to PMS communication protocol and PMS Facility Net software.

36. 1999 Application Note Clean Area Operation Monitoring with Isokinetic probe – PMS referred to on numerous occasions.

37. January 2009 ‘Molecular Newsletter’ – PMS referred to in relation to ‘Best Product’ award for AIRSENTRY II.

38. 2009 Operations Manual for ‘Liquistat’ counter; PMS features in e-mail addresses and with part numbers.

39. 2008 Operations Manual for ‘Lasair’ counter; PMS features in e-mail addresses.

40. ‘FAQ’ document about VHP; PMS referred to throughout; not explicitly dated but (see page 2) testing conducted in 2002 is referred to, so the document is likely to be dated 2002/2003 or thereabouts.

41. One page brochure for the PMS ‘Ultra DI’ counter (at least as early as 2009).

42. Copy page from Second Edition [2000] of the Collins English Dictionary and Thesaurus) showing that ‘PMS’ is a well-known (in the US and other English speaking countries, including the UK) abbreviation for ‘premenstrual syndrome’. The applicant wished to avoid that connotation / association in their marketplace, and hence did not see the need (or advisability) to reinforce that association, by seeking to register it, as a (publically visible) trade mark.

The EUTM proprietor replied that:

• It is the shareholder of PMT to which it also licenced the contested EUTM and both companies share the same CEO, Dirk Jessen, but there are no legal connections or shared economic interests between these two companies and the initial owner of the EUTM, FB.

• The applicant (a) had no registered trade mark PMS, neither in the EU nor in other countries; (b) has given no proof to be owner of an unregistered trade mark and didn’t specify which unregistered trade mark in which country would be the base of its application; (c) doesn’t specify for which goods and services it claims high brand awareness or prominence which may lead to an unregistered trade mark; (d) didn’t specify in which area the unregistered trade mark would enjoy protection and an unregistered trade mark in the USA cannot be base for an application for invalidity in the EU and a nonregistered trade mark in the USA has no protection against a later registered identical US trade mark, therefore it cannot be assumed that the nonregistered trade mark enjoys more protection in the EU than in the USA; (e) didn’t give any proof that the alleged trade mark PMS was unique in the USA, was brought to genuine use in USA and used with the symbol TM as unregistered trade mark; (f) didn’t give any proof that the alleged trade mark PMS was brought to genuine use in the EU or in other countries on the market for sales to the public. It only submitted internal documents, such as operation manuals, information for its distributors and sales personnel and documents where the abbreviation was used to avoid writing the whole corporate name; (g) is not a leader in the contaminating monitoring field and never used the letters PMS as trade mark identifier but as business identifier.

• FB could not be aware whether the applicant was interested or not in the letters PMS to distinguish its goods and services because the company never used these letters in connection with its sales on the market and because FB had no legal connections to the applicant or shared economic interests as the applicant’s agent.

• Whereas the applicant had no trade mark and had no intention to use the letters PMS for its goods and services it was not possible to prohibit its performance on the market of the EU. Therefore, neither the applicant nor the current owner of the contested EUTM could be in bad faith.

The EUTM proprietor filed the following documents to support its allegations:

• Extract from www.worldtrademarkreview.com about the unregistered trade marks in Germany.

• Printout from www.gov.uk about intellectual property crime and infringement.

• Wikipedia extract regarding the unregistered trade marks in USA.

• Google search results about PMS in German.

In the rejoinder the applicant claimed that the fact that it was not able to show any legal or economic connection between FB and the current EUTM proprietor or with PMT is irrelevant and that what is important is that the EUTM proprietor has not denied (but could easily have done so) that there is any connection between the respective companies, or that FB did not know of either the EUTM proprietor or PMT, at the relevant (filing) date of 25/08/2010.

The applicant clarified that the connotations or possible association with the meaning Pre-Menstrual Syndrome was a reason not “to register” the letters PMS prior to 2015 but the sign PMS “was used” on a significant scale by the applicant prior to the filing date of the EUTM. Furthermore, the distribution agreement between PMT and the applicant stated that the PMS mark is property of the applicant and that the distributor was forbidden to register it itself. The claim that the PMS was used by the applicant only as an acronym of its company is considered to be nonsense since the EUTM proprietor registered the acronym PMT of the company name of its closely related company PMT Partikel Messtechnik GmbH.

The proprietor must have been aware of the applicant’s use of (and claim to) the EUTM when it instructed, caused or allowed FB to file the application for the registration. By giving those instructions, the proprietor knew that it would be taking advantage of the applicant’s unregistered rights in the mark, and knew that the applicant had contractually prevented PMT from seeking registered protection for the mark. The proprietor thus clearly instructed the filing in bad faith.

The EUTM proprietor replied that neither it, nor the former owners, had knowledge of many of the documents filed by the applicant which are dated in 2015 or 2016 and that neither it, nor PMT, had any knowledge of a registered or non-registered trade mark PMS, or that the applicant uses the letters PMS for its goods and services on the market in the EU or outside EU on or prior to the filing date of the EUTM. Further it reiterated its previous arguments about the use as an acronym for the company’s name, that the applicant didn’t use the trade mark in connection to its goods or services on the market and replied to the applicant’s assertions.

ABSOLUTE GROUNDS FOR INVALIDITY – ARTICLE 59(1)(b) EUTMR

General principles

Article 59(1)(b) EUTMR provides that a European Union trade mark will be declared invalid where the applicant was acting in bad faith when it filed the application for the trade mark.

There is no precise legal definition of the term ‘bad faith’, which is open to various interpretations. Bad faith is a subjective state based on the applicant’s intentions when filing a European Union trade mark. As a general rule, intentions on their own are not subject to legal consequences. For a finding of bad faith there must be, first, some action by the EUTM proprietor which clearly reflects a dishonest intention and, second, an objective standard against which such action can be measured and subsequently qualified as constituting bad faith. There is bad faith when the conduct of the applicant for a European Union trade mark departs from accepted principles of ethical behaviour or honest commercial and business practices, which can be identified by assessing the objective facts of each case against the standards (Opinion of Advocate General Sharpston of 12/03/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 60).

Whether an EUTM proprietor acted in bad faith when filing a trade mark application must be the subject of an overall assessment, taking into account all the factors relevant to the particular case (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 37).

The burden of proof of the existence of bad faith lies with the invalidity applicant; good faith is presumed until the opposite is proven.

Assessment of bad faith

One situation which may give rise to bad faith is when a commercial entity has obtained some degree of legal protection by virtue of the use of a sign on the market, which a competitor subsequently registers with the intention of competing unfairly with the original user of the sign.

In such instances, the Court of Justice of the European Union (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 48 and 53) has stated that the following factors in particular should be taken into consideration:

1. the fact that the EUTM proprietor knows or must know that a third party is using an identical or similar sign for an identical or similar product capable of being confused with the contested EUTM;

2. the applicant’s intention of preventing that third party from continuing to use such a sign;

3. the degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought; and

4. whether the EUTM proprietor in filing the contested EUTM was in pursuit of a legitimate objective.

The above mentioned are only examples drawn from a number of factors which can be taken into account in order to determine whether or not the applicant was acting in bad faith when filing the application; account may also be taken of other factors (14/02/2012, T 33/11, Bigab, EU:T:2012:77, § 20-21 and 21/03/2012, T 227/09, FS, EU:T:2012:138, § 36).

Bad faith might be applicable when the parties involved have or have had any kind of relationship, such as (pre-/post-) contractual relationships, giving rise to mutual obligations and a duty of fair play in relation to the legitimate interests and expectations of the other party (13/11/2007, R 336/2007‑2, CLAIRE FISHER / CLAIRE FISHER, § 24).

There is bad faith when the EUTM proprietor intends through registration to lay its hands on the trade mark of a third party with whom it had contractual or pre-contractual relations or any kind of relationship where good faith applies and imposes on the EUTM proprietor the duty of fair play in relation to the legitimate interests and expectations of the other party (13/11/2007, R 336/2007 2, CLAIRE FISHER / CLAIRE FISHER, § 24).

The essential question is, therefore, whether the relationship between the parties created a close enough link to suggest that it is fair to expect the EUTM proprietor not to file an identical EUTM application independently without giving the invalidity applicant prior information and sufficient time to take action against the contested EUTM (13/12/2004, R 582/2003 4, EAST SIDE MARIO’S, § 23).

Furthermore, if a duty of fair play exists, it must be established whether or not the EUTM proprietor’s actions constitute a breach of a duty of fair play, thereby having been made in bad faith.

The applicant claims that it used for years the acronym PMS to refer in trade to its goods and services, or as a short version of the company name etc and that it appointed PMT as distributor for Germany and Austria since 1999 (see Annex 19) until about 2011. The applicant further claims that it didn’t register the acronym PMS as a trade mark because of the connotations this term has to Pre-Menstrual Syndrome, but changed the strategy around 2015 and started registering this sign in many jurisdictions.

The Cancellation Division notes that, in 2010, the contested mark PMS was filed by FB, a German company apparently unrelated to the distributor PMT or to the current EUTM proprietor. However, the applicant claims that this link is clear since (a) its distributor PMT and the current EUTM proprietor have the same CEOs that must have had knowledge of the obligations resulting from the distribution agreement between the applicant and PMT, (b) the EUTM was applied for a list of goods and services very close to those goods and services for which the applicant used its PMS sign and (c) FB and the current EUTM proprietor had, and still have, the same representative before EUIPO.

The Cancellation Division also notes that the evidence shows and the arguments of both parties coincide in the fact that for a long period of time and at the moment of filing of the EUTM, the distributor PMT and the current EUTM proprietor had the same two CEOs. It is, therefore, reasonable to assume that they (and therefore the current EUTM proprietor) must have had knowledge about the existence of an agreement between the distributor PMT and the applicant giving rise to mutual obligations and a duty of fair play in relation to the legitimate interests and expectations of the applicant, as well as, that the obligations of the distributor PMT towards the applicant listed above under Annex 19 were also binding on and inure to the benefit of the parties’ respective successors, heirs and assigns (emphasis added). As a result, the current EUTM proprietor had knowledge about the interdiction of PMT to file the application itself, by virtue of the respective distribution agreement and of the applicant “PMS’s exclusive right, title, and interest in and to the trademarks, trade names and service marks utilized by PMS” and of the obligation of the distributor to “not at any time do or cause to be done any act or thing contesting or in any way impairing or intending to impair any part of such right, title, and interest. In connection with the use of the trademarks, trade names, and service marks, Distributor shall not in any manner represent that it has any ownership of the name or mark or registration thereof, and Distributor acknowledges that use of the trademark, trade name or service mark shall not create in Distributor's favor any right, title, or interest in or to the said mark or name, but ail uses of the mark or name by Distributor shall inure to the benefit of PMS.” Nevertheless, the evidence does not show that the EUTM proprietor (or its predecessor) was a successor, heir or assign of the distributor PMT.

It could be argued that, having knowledge of all the aforementioned obligations of the distributor PMT, the EUTM proprietor’s decision to purchase in 2016 the EUTM from FB is somehow atypical. It could also be argued that in its decision it did not consider to previously consult the applicant of which existence it was established it had also knowledge for already a long period of time. Be that as it may, there is no proof that the EUTM proprietor had any kind of relationship with the initial owner, FB. This lack of proof was acknowledged by both parties in their observations and the Cancellation Division notes that, in fact, the EUTM proprietor (as well as its predecessor) denied having any legal or economic connotations or relations with FB. The fact that the EUTM proprietor has not expressly denied any kind of relationship with FB cannot be interpreted per a contrario, as an indication of the existence of some type of relationship as it is implied by the applicant. That would be merely a supposition.

The EUTM was assigned by FB to the EUTM proprietor on 18/08/2016 (so before 24/02/2017, the filing of the present invalidity action) and the assignment was registered at the Office by the same representative (the EUTM proprietor representative). At that moment, the applicant was already in the process of registering as national or EUTMs the PMS acronym, starting this process in 2015 when it decided to change its marketing strategy. The EUTM proprietor claimed that there is no link between itself and FB, the original EUTM proprietor. The applicant claimed that this link is obvious since both FB and the EUTM proprietor were represented before the Office by the same legal representative and, the mark was purchased immediately after the applicant started to file its own PMS applications to which the EUTM proprietor opposed, invoking the recently purchased contested mark. Nevertheless, the fact that both the initial owner and the current EUTM proprietor have the same professional representative is not at all uncommon in trade mark practice and cannot be a proof of the bad faith at the moment of filing of the application.

No proof was submitted that from the EUTM’s filing date in 2010 until 2016, the moment it was purchased by the current EUTM proprietor, the applicant was impeded in any way by the registration of the EUTM. The applicant has not proven any dishonest intentions and for a finding of bad faith, there must be, first, some action by the EUTM proprietor which clearly reflects a dishonest intention and, second, an objective standard against which such action can be measured and subsequently qualified as constituting bad faith. The evidence does not reflect such a situation.

In summary, the applicant has not established that FB applied for the contested EUTM with the sole intention to hinder the applicant’s business. The applicant has not proven that FB was aware of the applicant’s earlier trade mark use when it applied for the contested mark. The Cancellation Division underlines that the burden of proof regarding the point in time in which FB got to know about the use of the PMS sign by the applicant lies on the applicant. The applicant has not submitted any evidence whatsoever in this respect.

The Cancellation Division considers that the applicant has not demonstrated the bad faith of the EUTM proprietor at the moment of filing the application for registration of the EUTM. In the absence of a contract showing that FB was a representative of the applicant at the time of filing, or that FB deliberately arrogated to itself the trade mark right ‘PMS’, which it knew was the rightful property of the applicant, acquired through use over a period, the Cancellation Division cannot presume bad faith.

UNAUTHORISED FILING BY AN AGENT OR REPRESENTATIVE OF THE TRADE MARK OWNER – ARTICLE 60(1)(b) EUTMR IN CONNECTION WITH ARTICLE 8(3) EUTMR

Agent or representative relationship

According to Article 60(1)(b) EUTMR an EU trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings:

(b) where there is a trade mark as referred to in Article 8(3) and the conditions set out in that paragraph are fulfilled;

Pursuant Article 8(3) EUTMR, upon opposition by the proprietor of the trade mark, a trade mark shall not be registered where an agent or representative of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor’s consent, unless the agent or representative justifies his action. Therefore, the grounds for refusal of Article 8(3) EUTMR are subject to the following requirements:

the signs are identical or only differ in elements which do not substantially affect their distinctiveness;

the goods and services are identical or equivalent in commercial terms;

the applicant/EUTM proprietor is an agent or representative of the owner of the earlier mark;

the application/contested EUTM was filed without the consent of the owner of the earlier mark;

the agent or representative fails to justify its acts.

These conditions are cumulative. Therefore, where one of the conditions is not satisfied, the invalidity application based on Article 8(3) EUTMR cannot succeed. Article 8(3) EUTMR has its origin in Article 6septies of the Paris Convention (PC), which was introduced into the convention by the Revision Conference of Lisbon in 1958. The protection it affords to earlier trade mark proprietors consists of the right to prevent, cancel, or claim as their own unauthorised registrations of their marks by their agents or representatives, and to prohibit use thereof, where the agent or representative cannot justify its acts.

Article 8(3) EUTMR offers protection to the earlier trade mark proprietor where there is proof that a relationship exists and the trade mark proprietor never consented to the agent’s or the representative’s registering the proprietor’s trade mark in its own name. It is designed to prevent the misuse of a mark by the agent, as the agent may exploit the knowledge and experience acquired during its business relationship with the proprietor and therefore improperly benefit from the effort and investment which the proprietor himself has made (06/09/2006, T-6/05, First Defense Aerosol Pepper Projector, EU:T:2006:241, § 38).

In the present case, the applicant has not proven any such circumstances.

Consequently, the Cancellation Division rejects the applicant’s action based on Article 60(1)(b) EUTMR in conjunction to Article 8(3) EUTMR, for the reasons detailed in the preceding paragraphs as well as those from the assessment of the bad faith. The arguments and evidence relied upon under this ground are in effect the same as those pertaining to the claim of bad faith.

Conclusion

In the light of the above, the Cancellation Division concludes the application should be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the costs incurred by the EUTM proprietor in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the EUTM proprietor are the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Oana-Alina STURZA

Ioana MOISESCU

José Antonio GARRIDO OTAOLA

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.