CANCELLATION No 9179 C (INVALIDITY)

Florendi Jardin, 55, Boulevard Jules Verger, 35800, France (applicant), represented by Promark, 62, Avenue des Champs Elysées, 75008, France (professional representative)

a g a i n s t

Desarrollo Agricola y Minero, S.A., Camino de Enmedio, 120, 50013, Zaragoza, Spain (CTM proprietor), represented by Isern Marcas y Patentes, S.L., Avenida Diagonal, 463 bis, 2 piso, 08036, Barcelona, Spain (professional representative).

On 27/10/2015, the Cancellation Division takes the following

DECISION, Paris

1. The application for a declaration of invalidity is upheld.

2. Community trade mark No 9 351 412 is declared invalid in its entirety.

3. The CTM proprietor bears the costs, fixed at EUR 1 150.

REASONS

The applicant filed an application for a declaration of invalidity against all the goods of Community trade mark No 9 351 412. The application is based on Community trade mark registration No 6 603 501. The applicant invoked Article 53(1)(a) CTMR in connection with Article 8(1)(b) CTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the goods at issue are either identical or, in the case of the contested goods in Class 5, similar on account of their similar purpose, producer and distribution and that the marks are too close to one another to allow the public to safely distinguish between them. In respect of the signs, the applicant considers them highly similar from a visual and aural perspective. Conceptually, albeit meaningless as a whole, they are also similar on account of the common element activ/e. This is sufficient for a finding of likelihood of confusion on the part of the relevant public which comprises both professional and average consumers. As regards the proof of use it was requested to provide, the applicant claims that while the evidence relates to only a part of the relevant territory it is nonetheless acceptable as it concerns several countries in the European Union. In addition, the applicant explains that the products retailed under the mark are additives for fertilizers which are used in the end product which, in turn, is produced by a third party. As a result the earlier mark appears on the end product together with another mark, normally of the producer of the finished product. Finally, although the mark appears on the product in a figurative form this does not alter its distinctive character.

The CTM proprietor disputes the claims of the applicant and submits that

a) the application for declaration of invalidity should be declared inadmissible since the initial notice did not contain an indication of the arguments in support (in contravention to Rule 37 CTMIR);

b) use of the mark has not been proved and

c) in any event, there is no likelihood of confusion.

In particular, the evidence of use concerns a limited part of the relevant territory, namely France and demonstrates sales in small quantities over only part of the relevant period (excluding 2012-14). In addition, any use of the mark is in a form which alters its distinctive character. Finally, the evidence of use relates only to fertilisers which are but a part of the goods for which the earlier mark is registered. The CTM proprietor further maintains that even if use of the mark is nevertheless established, the marks are sufficiently different visually, aurally and conceptually to avert the likelihood of confusion. In particular, the vowels at the beginning of the marks are different thus making for a different aural impression. The common element ‘activ/e’ is weak for the goods at issue and there is a clear conceptual difference between the elements ‘NUTRI’ and ‘NITRO’, the first being associated with nutrition or nourishing and the second with nitrogen or nitrate.

ADMISSIBILITY

In its final observations the CTM proprietor argued that the application for declaration of invalidity is inadmissible due to failure to submit arguments in support, this being contrary to Rule 37(b)(iv). According to that provision an application for declaration of invalidity shall contain an indication of the facts, evidence and arguments presented in support of the grounds on which the application is based.

The Cancellation Division first notes that the application has already been declared admissible and this decision was notified to the CTM proprietor on 03/04/2014. At that time the CTM proprietor was also informed that pursuant to Article 58(2) CTMR that decision might be appealed together with the final (the present) decision on the application for invalidity.

Without prejudice to the above, however, it must be noted that the application for declaration of invalidity was accompanied by an indication of the grounds, the earlier right on which it was based, by supporting evidence, namely a certificate of registration of the earlier right and by a claim that the CTM must be declared invalid since there was likelihood of confusion. For the purposes of admissibility within the meaning of Rule 37(b)(iv) CTMIR these data appear sufficient in so far as that provision requires an indication of the facts, evidence and arguments and not a detailed submission as suggested by the CTM proprietor. In any event, the applicant supplemented the abovementioned information with a detailed deposition of its arguments a month after the initial application. The CTM proprietor therefore had the chance to respond to those arguments, indeed he actually did file a response.

It follows from the above, that the application has already been declared admissible and that, in any event, the CTM proprietor’s claim in that regard appears unfounded.

PROOF OF USE

According to Article 57(2) and (3) CTMR, if the CTM proprietor so requests, the applicant must submit proof that, during the period of five years preceding the date of the application for a declaration of invalidity, the earlier trade mark has been genuinely used in the territories in which it is protected and for the goods or services for which it is registered and which it cites as justification for its application, or that there are proper reasons for non-use. If, at the date on which the contested CTM application was published, the earlier mark had been registered for not less than five years, the applicant must submit proof that, in addition, the conditions contained in Article 42(2) CTMR were satisfied at that date.

According to the same provision, in the absence of such proof the application for a declaration of invalidity will be rejected.

The request has been filed in due time and is admissible given that the earlier trade mark was registered more than five years prior to the date of the application for a declaration of invalidity.

On 28/07/2014 the applicant was given two months to submit proof of use.

The application for a declaration of invalidity was filed on 27/03/2014. The applicant was, therefore, required to prove that the trade mark on which the application is based was genuinely used in the European Union from 27/03/2009 to 26/03/2014 inclusive.

Furthermore, the evidence must show use of the trade mark for the goods on which the application is based, namely:

Class 1: Chemicals used in gardening and horticulture, manures.

According to Rule 40(6) in conjunction with Rule 22(3) CTMIR, the evidence of use must indicate the place, time, extent and nature of use of the earlier mark for the goods and services for which it is registered and on which the application is based.

On 27/10/2014 the applicant submitted evidence as proof of use. The evidence consists of the following documents:

• An affidavit by Mr B. Hemery, General Manager of the applicant and by Mr C. Haigron, Account Department Manager stating that the earlier mark has been extensively used for fertilizers in the period 2008-11 in France. The document indicates the annual turnover generated from sales of products bearing the mark as follows: 2008 – 35 508 Euros (EUR); 2009 – EUR 946 989; 2010 – EUR 1 460 982; and 2011 – EUR 1 604 451. According to the affidavit the main customers are Leclerc, Cora, Auchan and Truffaut – all large supermarket chains in France (Item No. 1 in the list of evidence submitted by the applicant).

• Eight invoices addressed to clients in France and Belgium for the period 2009-2011 for a product Nutriactiv. The invoices do not specify the nature of the product. The invoices are for amounts ranging from approximately EUR 7,000 to EUR 21,000 (Item No. 2).

• 2010 Sales brochures of Auchan and Cora – two of the five largest supermarket chains. The brochures show packagings of fertilisers which show a figurative device ‘Nutriactive’, followed by the ® symbol, alongside the Cora or Auchan sign. The brochure specifies that the ‘Nutriactiv’ sign indicates the presence of a natural active substance elaborated with algea extracts which enhances plant development and increases weather resistance. The Cora brochure contains in addition an indication of the applicant’s website – www.nutriactiv.fr. The applicant explains that its product is a fertiliser additive which is a component of the finished fertiliser product sold under the Cora or Auchan brand. According to it, it is common practice in the relevant market for a product retailed under an umbrella brand to contain ingredients under a different mark which is also indicated on the packaging (Item No. 3).

• An invoice to Cora France dated 2010 for around EUR 8,000 corresponding to products featured in the brochures, namely universal fertiliser (Item No. 4).

• 16 Press articles from various specialised media dated from 2009-2010. The articles mention ‘Nutriactive’ as the applicant’s new mark in relation to an additive for products enhancing plant growth. Some articles explain that the Nutriactiv sign will appear on fertiliser products sold under the brands Leclerc, Cora, Auchan or Truffaut. Other articles dated in 2010 inform that ‘Nutriactiv’ sponsors two speciliased TV shows aired on two of France’s national public TV channels – France 3 and France 5. The ‘Nutriactiv’ product is described as a mixture based on natural extracts from brown algae which is added to fertilisers and boosts plant growth. The expression ‘Nutriactiv’ is represented with the ® symbol in the majority of the articles (Item No. 5).

• 16 invoices from 2012 – 2014 to clients in France, Belgium, the Netherlands and the United Kingdom. The invoices concern ‘Nutriactiv’ products without specifying the nature of the goods. The amounts concerned range from EUR 5,000 to EUR 24,000.

The CTM proprietor 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 earlier mark is registered.

The CTM proprietor’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.

Place of use

The invoices, brochures and articles show that the place of use is France, Belgium, and to a smaller extent the Netherlands and the United Kingdom. This can be inferred from the language of the documents (‘French’), the currency mentioned (‘Euros’) and some addresses in all of the above mentioned countries. Therefore, the evidence relates to part of the relevant territory. It is established by case-law that in cases where the territory is the whole European Union use in parts of it may suffice. This is the case in the present case not least because the evidence points to use throughout France and Belgium (invoices to large supermarket chains and different addresses) which alone are significant markets both in terms of customers and turnover for the goods at issue given that they are large economies within the EU. With this in mind, use in these territories, together with the additional evidence showing the expansion into additional markets is sufficient proof of use of the mark in the relevant territory, namely the EU.

Time of use

Most of the evidence is dated within the relevant period, namely the invoices which relate to the whole relevant period (2009-2014) as well as the articles, brochures and affidavit which relate to part of it (2009-2011). In this regard, the CTM proprietor’s claim that the evidence relates only to the period 2008-2011 cannot be supported since the applicant presented a number of invoices which relate to the period 2012-2014 as well. Therefore, the evidence of use sufficiently indicates the time of use.

Extent of use

This issue is contentious between the parties since the CTM proprietor argues that the evidence points to use on a small scale which does not corroborate the figures referred to in the affidavit.

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

The assessment of genuine use entails 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 documents filed, namely the affidavit, invoices, brochures and articles, provide the Cancellation Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use.

In particular, the applicant is under no obligation to submit all or even a majority of all the invoices in order to show a total turnover equalling that indicated in the remaining materials. Instead the invoices submitted are only examples of the sales it makes. In the present case, contrary to the CTM proprietor’s claims, the invoices show a continuous, uninterrupted business activity involving amounts which indicate a serious effort to maintain a presence in the market and which cannot therefore be considered to constitute mere token use. This is particularly true given that a large part of the invoices are issued to Cora and Auchan which, as correctly pointed out by the applicant, are two of the largest supermarket chains in France and Europe which speaks against small scale use. In addition, the press articles mention the mark’s sponsorship of TV shows on national television in France which too is a factor which points to a genuine effort towards acquisition of a market share.

Therefore, the Opposition Division considers that the opponent has sufficient indications concerning the extent of the use of the earlier mark.

Nature of use

In the context of Rule 22(3) CTMIR, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, of the use of the mark as registered, or of a variation thereof according to Article 15(1), second subparagraph, point (a) CTMR, and of its use for the goods and services for which it is registered.

According to Article 15(1), second subparagraph, point (a) CTMR, the following also constitutes use within the meaning of paragraph 1: use of the Community trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered. When examining the use of an earlier registration for the purposes of Article 57(2) and (3) CTMR, Article 15 may be applied by analogy to assess whether or not use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

In the present case, as the CTM proprietor correctly points out, the earlier word mark was used in a different form, namely as a figurative sign (the words Nutriactiv appear on two lines within a blue rectangle with three green leaves depicted in the top right corner) and alongside other trade marks such as Auchan or Cora.

As regards the form in which the sign was used, the Cancellation Division disagrees with the CTM proprietor’s allegation that it alters the mark’s distinctive character. The alterations are limited to non-distinctive and purely decorative elements. Firstly the blue-coloured rectangular shape is simply a basic geometrical shape which has little distinctive impact. Secondly the image of a green leaf is apt to be seen as allusive to the intended purpose of the fertilizers sold under the mark. Therefore neither of these additions are particularly distinctive or memorable.Furthermore, it is well-established by case-law, that the figurative elements in a mark (even more so when they are not memorable, distinctive or fanciful) are often accorded less attention by the relevant public than the verbal components which, in general, are used when one refers to a mark.

Therefore, the form in which the sign was used does not alter the distinctive character of the mark and the evidence is therefore acceptable.

The case cited by the CTM proprietor – R 0275/2006-2, ‘Hybris’ – cannot change this conclusion since there the altered form in which the mark was used included a memorable, distinctive addition (a peculiarly shaped inversed letter ‘y’) which could not be considered negligible. This situation does not obtain in the present case where, as mentioned above, the additions are mere decorative features which the public will not retain.

Moreover, in principle the use of a mark together with another sign does not preclude it from being accepted for establishing genuine use. In the present case, although indeed depicted on a product packaging together with or close to another sign, the earlier mark is always accompanied by the ® symbol, thus informing the public that it is a trade mark in its own right. In addition, the mark is often seen in a different part of the product packaging from the main brand. This is especially true for the Cora brochures. In addition, in all cases the packaging contains the two marks, it also contains an explication of the qualities of the ‘Nutriactiv’ additive thus making it clear to the public that it concerns an additional product which is identified by the earlier mark.

As regards the remaining materials, there the earlier right is either used on it own and in several occasions in the press articles is also followed by the ® symbol.

Therefore, the evidence does show use of the sign as registered within the meaning of Article 15(1), second subparagraph, point (a) CTMR.

As regards use of the mark in respect of the goods for which it is registered, it must first be pointed out that although the invoices do not indicate the type of product identified with the mark ‘Nutriactiv’ it can be inferred from the overall assessment of all of the evidence that that product is a fertiliser additive. This is the case since all of the remaining pieces of evidence (brochures, press articles) as well as the applicant itself make it clear that the products retailed under the mark are algae-based mixtures which are to be added to fertilisers to boost plant growth or enhance its sustainability.

With this in mind, however, it is noted that the earlier mark is registered for Chemicals used in gardening and horticulture, manures in Class 1. However, the evidence does not show genuine use of the trade mark for all these goods.

According to Article 57(2) CTMR, if the earlier trade mark has been used for only some of the goods or services for which it is registered it will, for the purposes of the examination of the application for a declaration of invalidity, be deemed to be registered only for those goods or services.

In the present case the evidence shows genuine use of the trade mark for the following goods:

Class 1: Additives for feritlisers.

Therefore, the Cancellation Division will continue the examination taking into consideration only these goods.

LIKELIHOOD OF CONFUSION – ARTICLE 53(1)(a) CTMR IN CONNECTION WITH ARTICLE 8(1)(b) CTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically‑linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

1. The goods

As a preliminary remark, according to Rule 2(4) CTMIR, the Nice Classification serves purely administrative purposes. Therefore, goods or services may not be regarded as being similar or dissimilar to each other simply on the grounds that they appear in the same or different classes in the Nice Classification.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

The goods on which the application is based are the following:

Class 1: Additives for feritlisers.

The contested goods are the following:

Class 1: Chemicals used in agriculture, horticulture and forestry; Manure for agriculture.

Class 5: Preparations for destroying vermin; Fungicides, herbicides.

Contested goods in Class 1

The contested chemicals used in agriculture, horticulture and forestry include, as a broader category, the applicant’s additives for feritlisers. It is impossible for the Cancellation Division to filter these goods from the abovementioned category. Since the Cancellation Division cannot dissect ex officio the broad category of the CTM proprietor’s goods, they are considered identical.

The contested manures for agriculture are animal excreta, usually with straw used to fertilize land (http://www.collinsdictionary.com/dictionary/english/manure). The earlier additives for feritlisers are substances in different form (liquid, solid, granules) which stimulate plant growth or development and which are added to another product, normally a fertiliser. In that sense the competing goods share the same purpose, namely to stimulate plant growth. It further follows from the common purpose that the goods have the same end consumers and distribution channels and, moreover, their producers can be the same. Therefore, these goods are similar to a high degree.

Contested goods in Class 5

The contested preparations for destroying vermin; fungicides, herbicides are all different types of substances for eliminating insects, rodents, fungi or plants which could be troublesome for plant and inhibit their growth. In that sense, these goods have the same purpose as the earlier additives for feritlisers in Class 1, namely to foster plant growth, albeit in different ways. The fact that the competing products can all have application in relation to plant growth means they have the same end users (since additives can be directed to the end consumer who would add them to their fertilising agent), namely farmers, agriculture, horticulture specialists and can be distributed through the same channels. These common factors prompt a finding of similarity between the goods at issue.

2. The signs

NUTRIACTIV	NITROACTIVE
Earlier trade mark	Contested trade mark

The relevant territory is the European Union.

Visually, the signs are similar to the extent that they coincide in 8 of their letters, all of which occupy the same position in each sign. The only differing letters are the second, fifth and, in the case of the contested sign, the last one.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the marks coincides in the phonemes ‘N*T-R*A-C-T-I-V*’. The pronunciation differs in the phonemes ‘U-I’ ‘I-O-E’ of the respective signs. The last letter of the contested sign ‘E’ will not be pronounced by part of the relevant public, for example the French and English-speaking public, as well as that part of the public which, although not English-speaking, will recognise an English-looking word and will read it accordingly. In spite of the different letters and contrary to what the CTM proprietor argues, the almost identical structure of the signs, and the identical positioned letters make for a very similar rhythm and intonation of the marks for at least a part of the relevant public (French, German, Polish, Bulgarian, Czech-speaking public).

Conceptually, for the majority of the public in the relevant territory (for example the English, French, German, Spanish, Polish, Bulgarian-speaking public) the elements ‘ACTIV/E’ included in both signs will be associated with ‘something in action or effective’. To that extent, the signs are conceptually similar.

In addition, the element ‘NUTRI’ of the earlier sign will be associated by at least the English-speaking public with ‘nutrition’, that is the process of nourishing someone or something.

Moreover, given that some of the contested goods are, or relate to, fertilisers, of which ‘Nitrogen’ is a main component, the relevant English-speaking public will associate the element ‘NITRO’ of the contested sign with the chemical element ‘nitrogen’.

It follows from the above that English speakers will understand the marks as conveying, albeit somewhat vaguely, the notions of “nutrition in action” and “nitrogen in action”.

Without prejudice to the above, part of the relevant public, especially those speaking Slavic languages such as Polish or Bulgarian, will not understand either of the signs because they will find them meaningless as wholes. Moreover the elements ‘NITRO’ or ‘NUTRI’ will not convey any meaning to this part of the relevant public.

It follows from the above scenarios that the signs are either similar for those of the relevant public who only understand the element ‘ACTIV/E’ of the marks or, for those of the public who understand all the elements, such as the English-speaking public, the signs are not conceptually similar.

Finally, it cannot safely be ruled out that some small part of the relevant public might not assign any meaning to either sign or its components. In that case, the conceptual comparison does not influence the assessment of similarity between the signs.

Taking into account the abovementioned visual, aural and, for some, conceptual coincidences, it is considered that the signs are similar.

3. Distinctive and dominant elements of the signs

In determining the existence of likelihood of confusion, the comparison of the conflicting signs must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components.

The parties argue that the element ‘ACTIV/E’ of both marks is weak since it merely indicates that the goods at issue have an active ingredient or are effective. The Cancellation Division agrees with this assertion.

In addition, according to the CTM proprietor, the element ‘NUTRI’ of the earlier mark is weak for fertilisers since it indicates the purpose of such goods, namely to nourish plants. Here, too, the Cancellation Division agrees with this assessment but only in relation to the part of the public which understands this element.

However, the Cancellation Division also considers that the element ‘NITRO’ of the contested sign, for those of the relevant public who understand it, is equally weak for part of the goods namely fertilisers, fertilising preparations as it indicates their main ingredient or component.

As has already been adumbrated, from the standpoint of consumers speaking some Slavic languages such Polish or Bulgarian neither NITRO nor NUTRI can be considered weak because they will not be understood.

The marks have no element which could be considered dominant (more visually eye‑catching than other elements).

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

The applicant did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering what was stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for the goods at issue and for a part of the relevant territory, such as the English-speaking public who understand both elements of the mark. The mark has a normal degree of distinctiveness for the remaining part of the relevant territory, where it has no meaning for the goods.

5. Relevant public – level of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. Furthermore, the average consumer’s level of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical or similar target the public at large and professional. The degree of attention of both types of targeted consumers is average.

6. Global assessment, other arguments and conclusion

The goods in the present case are identical or similar to varying degrees and the signs similar.

The CTM proprietor in arguing against the finding of likelihood of confusion maintains that the overall impression created by the competing marks is different.

This issue is the central one in the present case. In this regard, the impression produced by the marks on the relevant public differs depending on whether the public understands both marks. Thus, for the English-speaking public the overall impression of each mark is influenced by the somewhat different concepts conveyed by the components, notable the first ones, of each mark.

On the other hand, for those of the relevant public such as the Polish and Bulgarian public, who neither assign any meaning to the signs as a whole nor understand their first element, the overall impression of the signs is dominated by the fact that the signs are visually very similar on account of their almost identical length, letter sequence and structure. In addition, for that part of the public the signs are also very close aurally since, in spite of the different vowels, the rhythm and intonation are the same and the phonetic structure is almost identical.

These similarities make for a close connection between the signs in the minds of the public which cannot be dispelled, as the CTM proprietor considers, by the different vowels.

In addition to the above, a well-established principle also militates in favour of likelihood of confusion. This is the principle of imperfect recollection since the public does not compare the signs directly and the close visual and aural impression is decisive in this regard.

Therefore, in spite of the differences between the verbal elements, there is a likelihood of confusion because the visual and aural coincidences are overwhelming for at least part of the relevant public, namely the Polish and Bulgarian-speaking one (who will not understand the signs or its first elements).

Considering all the above, the Cancellation Division finds that there is a likelihood of confusion on the part of the public.

Therefore, the cancellation application is well founded on the basis of the applicant’s Community trade mark registration. It follows that the contested trade mark must be cancelled for all the contested goods.

COSTS

According to Article 85(1) CTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the CTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(iii) CTMIR, the costs to be paid to the applicant are the cancellation fee and the representation costs, which are to be fixed on the basis of the maximum rate set therein. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 CTMR and, therefore, did not incur representation costs.

The Cancellation Division

Richard THEWLIS

Orlin DENKOV

Julie GOUTARD

According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. 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 800 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Rule 94(4) CTMIR, such a request must be filed within one month of the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 has been paid (Article 2(30) CTMFR).