OPPOSITION No B 1 947 418

Nishimoto Trading Co., Ltd., 13409 Orden Drive, Santa Fe Springs, California 90670-6336, United States of America (opponent), represented by Dehns, St Bride’s House, 10 Salisbury Square, London EC4Y 8JD, United Kingdom (professional representative)

a g a i n s t

Far West Rice, Inc., 3455 Nelson Road, Nelson, California 95958, United States of America (applicant), represented by Jeffrey Parker and Company, The Grange, Hinderclay, Suffolk IP22 1HX, United Kingdom (professional representative).

On 25/02/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 1 947 418 is upheld for all the contested goods.

2. Community trade mark application No 10 228 005 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of Community trade mark application No 10 228 005. The opposition is based on, inter alia, German trade mark registration No 2 073 996. The opponent invoked Article 8(1)(b) CTMR.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s German trade mark registration No 2 073 996.

PROOF OF USE

In accordance with Article 42(2) and (3) CTMR, if the applicant so requests, the opponent shall furnish proof that, during the period of five years preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services in respect of which it is registered and which it cites as justification for its opposition, or that there are proper reasons for non-use.

According to the same provision, in the absence of such proof the opposition must be rejected.

The applicant requested that the opponent submit proof of use of, inter alia, German trade mark No 2 073 996, on which the opposition is based.

The request was submitted in due time and is admissible given that the earlier trade mark was registered more than five years prior to the publication of the contested application.

The contested application was published on 04/10/2011. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in Germany from 04/10/2006 to 03/10/2011, inclusive. Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based, namely the following:

Class 30: Rice of any kind.

According to Rule 22(3) CTMIR, the evidence of use shall consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based.

On 06/11/2014, according to Rule 22(2) CTMIR, the Office gave the opponent until 11/01/2015 to submit evidence of use of the earlier trade mark. Following the opponent’s request of 09/01/2015, this time limit was extended by two months.

On 11/03/2015, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is, in particular, the following:

• A witness statement from Toshiyuki Nishikawa, Vice President of Nishimoto Trading Co., Ltd. (the opponent), dated 03/06/2015, stating that the earlier trade mark has been used in the European Union during at least the five years prior to the publication of the contested sign. The document makes reference to the copies of bills of lading and corresponding invoices submitted, referring to sales of rice under the mark ‘AKITAKOMACHI’. It states that the buyers mentioned in the invoices are several companies in Germany and a company in the United Kingdom. It also lists the ports of loading and discharging of the goods. The total value of sales exhibited by these documents has been estimated at USD 48 072 and the sales amount to 1 300 bags and 502 bales of rice with the mark ‘AKITAKOMACHI’.

• A booking confirmation, dated 19/08/2008, for the shipping of foodstuffs. The document does not contain indications of the particular type of goods or any quantities and prices. A document entitled ‘sticker instruction’, also dated 19/08/2008, concerning the shipment of goods by the opponent to a company with an address in Willich, Germany, for goods indicated as, inter alia, ‘AKITAKOMACHI BR. SHORT GRAIN RICE’.

• A bill of lading and a corresponding invoice, dated 18/09/2006, for the delivery and sale of goods by the opponent to a company with an address in Willich, Germany, for goods indicated as ‘rice’ in the bill of lading and as, inter alia, ‘AKITAKOMACHI BR. SHORT GRAIN RICE’ in the invoice. The amount of rice indicated as ‘AKITAKOMACHI’ in the invoice is around 3 250 kg for around USD 5 000.

• A bill of lading and a corresponding invoice, dated 28/01/2009, for the delivery and sale of goods by the opponent to a company with an address in Kaarst, Germany, for goods indicated as ‘rice’ in the bill of lading and as, inter alia, ‘AKITAKOMACHI BR. SHORT GRAIN RICE’ in the invoice. The amount of rice indicated as ‘AKITAKOMACHI’ in the invoice is around 4 400 kg for around USD 9 500.

• A waybill and a corresponding invoice, dated 12/10/2010, for the delivery and sale of goods by the opponent to a company with an address in Kaarst, Germany, for goods indicated as ‘rice’ in the waybill and as, inter alia, ‘AKITAKOMACHI BR. SHORT GRAIN RICE’ in the invoice. The amount of rice indicated as ‘AKITAKOMACHI’ in the invoice is 1 060 kg for USD 2 376.

• A bill of lading and a corresponding invoice, dated 03/09/2011, for the delivery and sale of goods by the opponent to a company with an address in Mönchengladbach, Germany, for goods indicated as ‘rice’ in the bill of lading and as, inter alia, ‘AKITAKOMACHI BR. SHORT GRAIN RICE’ in the invoice. The amount of rice indicated as ‘AKITAKOMACHI’ in the invoice is 1 000 kg for USD 2 180.

The applicant contests the probative value of the evidence of use filed by the opponent. As far as the witness statement is concerned, Rule 22(4) CTMIR expressly mentions written statements referred to in Article 78(1)(f) CTMR as admissible means of proof of use. Article 78(1)(f) CTMR lists means of giving evidence, amongst which are sworn or affirmed written statements or other statements that have a similar effect according to the law of the State in which they have been drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perception of the party involved in the dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all. The final outcome depends on the overall assessment of the evidence in the particular case. This is because, in general, further evidence is necessary to establish use, since such statements have to be considered as having less probative value than physical evidence (labels, packaging, etc.) or evidence originating from independent sources. Bearing in mind the foregoing, it is necessary to assess the remaining evidence to see whether or not the contents of the declaration are supported by the other items of evidence.

The invoices and the corresponding bills of lading are commercial documents that represent registrations of transactions and means of payment, orders and confirmations thereof. These documents do not present any particular problems, and the relevance and credibility of commercial documents as means of evidence under Article 78(1) CTMR are not disputed.

The documents submitted demonstrate that the place of use is Germany. The invoices and the corresponding bills of lading show sales of products by the opponent, a United States company, to three entities with addresses in Willich, Kaarst and Mönchengladbach, Germany.

The mark has to be used in the relevant market – that is, the geographical area where it is registered. Evidence that relates only to the import of the goods to the relevant area may suffice as proof of use in this area (see by analogy 09/07/2010, T‑430/08, Grain Millers, EU:T:2010:304, § 33, 40 et seq.). It is necessary to verify whether that use occurred in the context of a commercial activity with a view to economic advantage and not as a private matter. In that regard, the use of the earlier mark upon the importation of goods to Germany from another state is indeed use in the context of a commercial activity with a view to economic advantage. Such use is therefore more than just a private matter. Therefore, the evidence relates to the relevant territory.

Most of the evidence is dated within the relevant period.

Evidence referring to use made outside the relevant timeframe is disregarded unless it contains conclusive indirect proof that the mark must have been put to genuine use as well during the relevant period of time. Events subsequent to the relevant time period may make it possible to confirm or better assess the extent to which the earlier mark was used during the relevant time period and the real intentions of the CTM proprietor at that time (27/01/2004, C‑259/02, Laboratoire de la mer, EU:C:2004:50).

In the present case, the evidence referring to use outside the relevant period, namely the invoice and bill of lading dated 18/09/2006, confirms use of the opponent’s mark within the relevant period, because the use it refers to is very close in time to the relevant period (04/10/2006 to 03/10/2011) and it supports the aspect of continuity of use over time.

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 invoices and bills of lading, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. The invoices are non-consecutive and give examples of sales in four different years (2006, 2009, 2010 and 2011) within the relevant period. Therefore, these documents prove the frequency of use of the mark throughout that period.

Use of the mark need not be quantitatively significant for it to be deemed genuine. In the present case, the invoices for goods with the indication ‘AKITAKOMACHI’ are for several thousand US dollars each. The items concerned, namely foodstuffs for everyday consumption, have a low unit price, and this has to be taken into account when assessing the invoices. They show sales amounting to a substantial value and provide sufficient information concerning the steady commercial volume of use. It is clear from the evidence that the opponent distributed goods bearing the indication ‘AKITAKOMACHI’ on the German market. The Opposition Division therefore has sufficient information regarding the commercial activities of the opponent throughout the relevant period. In any case, the documents prove that use of the mark has been more than mere token use.

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

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 shall also constitute 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 42(2) and (3) CTMR, Article 15 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

In the present case, the earlier mark, ‘AKITA KOMACHI’, is registered as a word mark. The invoices show the word mark ‘AKITAKOMACHI’ used together with other descriptive verbal elements. With regard to the use of the earlier mark as one word, the Opposition Division considers that the omitting of the space between the elements ‘AKITA’ and ‘KOMACHI’ is a negligible difference and the signs as used and as registered are broadly equivalent. The additional word elements used with the sign ‘AKITAKOMACHI’ in the invoices, namely ‘BR. SHORT GRAIN RICE’, refer to characteristics of the goods offered by the opponent, such as the size and type of rice sold; the German consumer, in general, has sufficient knowledge of English and the term ‘short grain’ is commonly used in relation to rice. Furthermore, the English word ‘rice’ resembles its German equivalent, ‘Reis’. Consequently, the expression ‘BR. SHORT GRAIN RICE’ perceived on a package of rice will be immediately understood as an indication of the characteristics of the product. Therefore, these verbal elements will not be perceived as indications of the commercial origin of the goods at issue.

The applicant argues that the expression ‘AKITAKOMACHI’ refers to a type of Japanese rice and cannot, therefore, function as an indication of commercial origin. In this regard, it has submitted the following documents:

• Annex 1: a document produced by the Californian Rice Commission stating the characteristics of the Akitakomachi variety of short grain rice.

• Annex 2: a document produced by the Rice Experiment Station in California listing production figures for various types of rice and listing the variety Akitakomachi as one of the types of short grain rice.

• Annexes 3 and 8: two extracts, in English, from the online encyclopaedia Wikipedia, showing two articles, ‘Japanese rice’ and ‘Koshihikari’, mentioning Akitakomachi as a variety of rice of Japanese origin.

• Annexes 4-7: extracts, in English, from four websites referring to the rice variety Akitakomachi.

The words ‘AKITA KOMACHI’/‘AKITAKOMACHI’ do not belong to the language in the relevant territory, namely German, and are not generally used and known by the public in the relevant territory. For example, the commonly known variety of Indian rice ‘Basmati’ is listed as such in German dictionaries (e.g. Duden German Universal Dictionary online at http://www.duden.de/suchen/dudenonline/basmati), whereas the words ‘AKITA KOMACHI’/‘AKITAKOMACHI’ are not present in such sources. The documents submitted by the applicant are publications in English, some of which concern the state of California in the United States of America. It is unlikely that the relevant German public will be familiar with the content of these publications. Therefore, in the absence of any indications to the contrary, it must be assumed that the relevant consumers will not associate the words ‘AKITA KOMACHI’/‘AKITAKOMACHI’ with any meaning relating to the goods at issue. Therefore, the relevant public will perceive the earlier sign as a fanciful and distinctive expression.

It follows from the above that the sign ‘AKITAKOMACHI’ functions as a trade mark, identifying the goods sold by the opponent. Therefore, the use of the earlier mark ‘AKITA KOMACHI’ as one word and with the additional elements does not alter its distinctive character.

In view of the above, the Opposition Division considers that the evidence does show use of the sign as registered within the meaning of Article 15(1), second subparagraph, point (a) CTMR.

The Court of Justice has held that there is ‘genuine use’ of a mark where it 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 does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, and 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

However, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark. According to Article 42(2) CTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it shall, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.

According to case law, when applying the abovementioned provision the following should be considered:

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub‑categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub‑category or sub‑categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub‑categories.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288)

In the present case, the evidence proves use for short-grain rice in Class 30, which forms an objective subcategory of the opponent’s broad category rice of any kind in Class 30. Therefore, the Opposition Division considers that the evidence shows genuine use of the trade mark only for short-grain rice in Class 30.

LIKELIHOOD OF CONFUSION – 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

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

Class 30: Short-grain rice.

The contested goods are the following:

Class 30: Rice.

The contested rice includes, as a broader category, the opponent’s short-grain rice. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

2. Relevant public – degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical are directed at the public at large. The degree of attention is deemed to be average.

3. The signs

AKITA KOMACHI	KOMACHI
Earlier trade mark	Contested sign

The relevant territory is Germany.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The words ‘AKITA’ and ‘KOMACHI’ of the signs under comparison do not have any meaning for a part of the public in the relevant territory. Part of the relevant public may associate the word ‘AKITA’ of the earlier mark with the name of a dog breed originating in Japan. Another part of the public may perceive the earlier mark, ‘AKITA KOMACHI’, as a first name and a surname of Japanese origin. It may also perceive the contested sign ‘KOMACHI’ as a Japanese surname. These verbal elements are not descriptive or lacking distinctiveness for the relevant goods in Class 30 for the public in the relevant territory; they do not describe or allude to any of their essential characteristics.

The marks under comparison have no elements that could be considered clearly more distinctive or more dominant (visually eye-catching) than other elements.

Visually, the signs coincide in the word ‘KOMACHI, which is the second word of the earlier mark and constitutes the contested sign. However, they differ in the first word of the earlier mark, ‘AKITA’. Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the word ‘KOMACHI’, present identically in both signs. The pronunciation differs in the sound of the word ‘AKITA’ of the earlier mark, which has no counterpart in the contested sign. Therefore, the signs are aurally similar to an average degree.

Conceptually, the words ‘AKITA’ and ‘KOMACHI’ do not have any meaning for a significant part of the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs for that part of the public.

Part of the relevant public may be familiar with the fact that the word ‘AKITA’ of the earlier mark denotes the name of a dog breed originating in Japan, while it may perceive the word ‘KOMACHI’ as meaningless. Consequently, since one of the signs (the contested sign) will not be associated with any meaning, the signs are not conceptually similar for that part of the public.

Another part of the public may perceive the earlier mark, ‘AKITA KOMACHI’, owing to its construction, as a first name and a surname of Japanese origin. It may also perceive the contested sign ‘KOMACHI’ as a Japanese surname. Surnames have, in principle, a higher intrinsic value as indicators of the origin of goods or services than first names. This is because general experience tells us that the same first name may belong to a great number of people who do not have anything in common, whereas the presence of the same surname could imply the existence of some link between those people (a family link). Therefore, consumers tend to pay more attention to family names than to first names. Consequently, since both signs may be perceived as referring to the same surname, ‘KOMACHI’, the signs are conceptually highly similar for that part of the public.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

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

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The goods are identical. The marks are similar to the extent that the second word of the earlier mark, ‘KOMACHI’, constitutes the contested sign.

It is acknowledged that the word ‘AKITA’ in the earlier mark will not go unnoticed, due to its location at the beginning of the sign. Nevertheless, according to settled case law, two marks are similar when, from the point of view of the relevant public, they are at least partly identical as regards one or more relevant aspects (see 02/11/2003, T‑286/02, Kiap Mou, EU:T:2003:311; 15/02/2005, T‑169/02, Negra modelo, EU:T:2005:46; 16/03/2005, T‑112/03, Flexi Air, EU:T:2005:102; 08/03/2005, T‑32/03, Jello Schuhpark, EU:T:2005:82; 06/10/2004, T‑356/02, Vitakraft, EU:T:2004:292; 23/10/2002, T‑104/01, Fifties, EU:T:2002:262; and 04/05/2005, T‑22/04, Westlife, EU:T:2005:160), and this common element retains an independent distinctive role in another composite mark (06/10/2005, C‑120/04, Thomson Life, EU:C:2005:594, § 30).

In the present case, the element ‘KOMACHI’ is distinguishable in the earlier mark and plays an independent role in it, since both word elements of the sign are meaningless for a significant part of the relevant public and, therefore, the two words composing the mark will be perceived as two independent distinctive elements. For another part of the public, this element may establish a conceptual link between the signs, as it may be perceived as the same surname in both signs. As seen above, surnames are, in principle, given more importance by consumers than first names.

Consequently, the marks are visually and aurally similar to an average degree and conceptually similar to a high degree for part of the relevant public. The goods are identical and target the public at large, whose degree of attention is average. Furthermore, the earlier mark enjoys a normal degree of distinctiveness per se in relation to the relevant goods.

As seen above, in the absence of any indications to the contrary, it must be assumed that the words ‘AKITA KOMACHI’ will not be associated with any meaning related to the goods at issue by the relevant German consumers and will be perceived as distinctive words.

Article 8(1)(b) CTMR states that, upon opposition, a CTM application shall not be registered if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

Account must also be taken of the principle that a likelihood of confusion implies some interdependence among the relevant factors, and in particular a similarity between the trade marks and between the goods or services. Accordingly, a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa. In the present case, it must be noted that the contested goods are identical to the goods covered by the earlier mark.

Considering all the above, the Opposition Division finds that the differences between the signs are not capable of counteracting the similarity resulting from their coinciding element, ‘KOMACHI’, and that, for identical goods, there is a likelihood of confusion, including a likelihood of association, on the part of the public.

Therefore, the opposition is well founded on the basis of German trade mark registration No 2 073 996. It follows that the contested trade mark must be rejected for all the contested goods.

As the abovementioned earlier right leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

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

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

According to Rule 94(3), (6) and (7)(d)(i) CTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Martina GALLE

Alexandra APOSTOLAKIS

Andrea VALISA

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 Opposition Division on request. According to Rule 94(4) CTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Article 2(30) CTMFR) has been paid.