OPPOSITION No B 2 156 183

MAN Truck & Bus SE, Dachauer Str. 667, 80995 München, Germany (opponent), represented by RDP Röhl - Dehm & Partner, Moritzplatz 6, 86150 Augsburg, Germany (professional representative)

a g a i n s t

Halla Holdings Corporation, 46, Giheungdanji-ro, Giheung-gu, Yongin-si, Gyeonggi-do, Republic of Korea (applicant), represented by Hirsch & Associés, 137 rue de l'Université, 75007 Paris, France (professional representative).

On 11/08/2020 the Opposition Division takes the following

DECISION:

1. Opposition No B 2 156 183 is partially upheld, namely for the following contested goods and services:

Class 7: Car lifts, Kick starters for motorcycles, Air condensers, Superchargers, Condensers{steam}{parts of machines}, Control mechanisms for machines/engines or motors, Control cables for machines/engines or motors, Shock absorbers for machine other than for vehicles, Spiral springs other than for vehicles, Rail antishocking materials other than for vehicles, Spring buffers other than for vehicles, Spring hydaulic buffers other than for vehicles, Airsprings other than for vehicles, Lamellar springs other than for vehicles, Shock absorber plungers{parts of machines}, Dashpot plungers {parts of machines}, Braking devices for machine other than for vehicles, Disk brakes other than for vehicles, Band brakes {machine elements not for land vehicles}, Brake linings other than for vehicles, Brake shoes other than for vehicles, Brake segments other than for vehicles, Block brakes {machine elements not for land vehicles}, Conical brakes other than for vehicles, Brakes for industrial machines, Brake pads other than for vehicles, Pressure reducers {parts of machines}, Grease rings {parts of machines}, Grease boxes {parts of machines}, Rings other than for land vehicles{parts of machines}, Roller bearings, Bearings {parts of machines}, Ball-bearings, Brushes {parts of machines}, Springs {parts of machines}, Universal Joints [Cardan joints], Lubricators {parts of machines}, Stators {parts of machines}, Alternators, Alternating current servo motors, Starters for motors and engines, Starter alternators, Motors {except for land vehicles}, Current generators, Dynamo Brushes, Servomotors, Driving motors other than for vehicles, Servo motors other than for vehicles, Electric motors other than for vehicles, DC motors other than for vehicles, Driving motors other than for land vehicles, Motors other than for land vehicles, Motors {electric} other than for land vehicles, Planetary gear motors, Bicycle dynamos, Electric starter motors, Igniting magnetos, Electrostatic generators, Direct current motors, DC generators, Carbon brushes {electricity}.

Class 9: Optical apparatus and instruments, Optical Lenses, Optical goods, Multiple purpose cameras, Multiframe view cameras, Digital cameras, Camera containing a linear image sensor, Infrared cameras, Accelerometers, Acceleration sensors, Range finders, Speed Indicators, Speed checking apparatus for vehicles, Kilometer recorders for vehicles, Automatic indicators of low Pressure in vehicle tires[tyres], Pressure sensors, Automatic pressure control apparatus, Pressure measuring apparatus, Temperature sensors, Gyrometers, Bicycle speedometers, Alarms, Alarms, Attenuators, Voltage regulators for vehicles, Transformers {electricity}, Switches {electric}, Light Dimmers (regulators){electric}, Regulating apparatus {electric}, Adapters {electricity}, Inverters {electricity}, Control panels {electricity}, Armatures {electricity}, Resistances {electric}, Converters {electric}, Connections {electric}, Contacts {electric}, Electrical controllers, Electrical controlling devices, Coils {electric}, Current converters, Electric current switches, Electric current control devices, Current limiters, Voltage stabilizing power supply, Voltage stabilizers, Voltage regulators, Power switches, Electromagnetic Coils, Current rectifiers, Rectifier modules, Electric apparatus for Commutation, Commutators, Power transformers for amplification, Circuit breakers, Differential switches, Choking coils (impedance), Condensers [capacitors], Battery charge devices, Accumulators {electric}{for vehicles}, Battery cases, Accumulators {electric}, Wavemeters, Car video recorders, Detectors, Interfaces for detectors, High-frequency apparatus, Radar apparatus, Microwave antennae, Antennas for wireless communications apparatus, Direction finders, Navigation apparatus for vehicles (on-board computers), Aerials, Antennae filters, Remote control apparatus, Satellite navigational apparatus, Car navigators, Car aerials, Telecommunication machines and implements, Transmitters {telecommunication}, Transmitting sets {telecommunication}, Frequency converters, Radar receivers with amplifiers, Car antennae, Communications apparatus for vehicles, Telecommunications transmitters, Apparatus for transmission of communication, Navigational instruments, Portable communications apparatus, Ultrasonic sensors, Diodes, Semi-conductors, Semi-conductor memories, Semi-conductor memory units, Semiconductor elements, Semi-conductor wafers, Semiconductor power elements, Light emitting diodes [LED], Wafers (silicon slices), Printed circuit boards, Electronic circuit board, Connectors for electronic circuits, Integrated circuits, Circuit boards provided with integrated circuits, Integrated circuit module, Chips [integrated circuits], Transistors, Printed circuits, Circuit boards.

Class 11: Heating apparatus, Hot air apparatus, Refrigerating chambers, Refrigerating Containers, Air conditioners, Filters for air conditioning, Air conditioning installations, Air conditioning apparatus, Fans {air-conditioning}, Fans {parts of air conditioning installations}, Heating and cooling systems for motor cars, Air conditioners for automobiles, Ventilation [air-conditioning] installations and apparatus for automobiles, Heaters for automobiles, Bicycle lights, Bicycle lamps, Lighting apparatus and devices for bicycles.

Class 12: Horns for motor cars, Anti-theft devices for motor cars, Wheel rims for motor cars, Cycles, Parts and accessories for cycles, Cycle rims, Wheels for motorcycles, Cycle spokes, Cycle stands, Cycle frames, Cycle handle bars, Cycle hubs, Two-wheeled motor vehicles, Air bags{safety devices for automobiles}, Steering wheels for automobiles, Reversing alarms for automobiles, Parts and accessories for automobiles, Electric cars, Tandem bicycles, Mopeds, Touring bicycles, Delivery bicycles, Bicycles, Bicycle rims, Wheels for bicycles/cycles, Bicycle spokes, Frames {for luggage carriers}{for bicycles}, Bicycle stands, Bicycle frames, Bicycle handle bars, Parts and accessories for bicycles, Handlebars, Shock absorbing springs for motor cars, Spiral springs for vehicles, Shock absorbing springs for vehicles, Spring-assisted hydraulic shock absorbers for vehicles, Air springs for vehicles, Suspension Shock absorbers for vehicles, Shock absorbing Springs for vehicles, Suspension shock absorbers for vehicles, Shock absorbers for automobiles, Brakes for motor cars, Brake linings for motor cars, Brake shoes for motor cars, Brake segments for motor cars, Disk brakes for vehicles, Band brakes for vehicles, Brakes for vehicles, Brake facings for vehicles, Brake linings for vehicles, Brake shoes for vehicles, Brake systems for vehicles, Braking systems for vehicles and parts thereof, Brake segments for vehicles, Brake Shoes for vehicles, Block brakes for vehicles, Conical brakes for vehicles, Non-skid devices for vehicle tires [tyres], Braking devices for vehicles, Cycle brakes, Band brakes {for land vehicles}, Block brakes {for land vehicles}, Brake pads for automobiles, Brakes for bicycles/cycles, Bicycle brakes, Gearboxes for motor cars, Crankcases for components for motor cars {other than for engines}, Clutch mechanisms for motor cars, Torque converters for motor cars, Gears for cycles, Reduction gears for land vehicles, Gears for land vehicles, Gear boxes for land vehicles, Transmission shafts for land vehicles, Gears for vehicles, Cranks for cycles, Bearings for land vehicles, Axis for land vehicles, Couplings for land vehicles, Axle journals, Trailer couplings, Electric motors for motor cars, Motors for cycles, Alternating current [AC] motors for land vehicles, Driving motors for land vehicles, Motors for land vehicles, Servomotors for land vehicles, Motors {electric}{for land vehicles}, Direct current [DC] motors for land vehicles.

Class 35: Wholesale services for automobiles, Commercial intermediary service in the field of bicycles, Retail services for tires [tyres] and tubes, Wholesale services for antifreeze, Retail service for liquid fuels, Commercial intermediary services in the field of parts of vehicles, Commercial intermediary services in the field of articles of vehicles, Commercial intermediary services in the field of renewal parts of vehicles.

Class 37: Vehicle breakdown assistance [repair], Vehicle greasing, Motor vehicle maintenance and repair, Repair of bicycles, Repair of generators, Vehicle polishing, Anti-rust treatment for vehicles, Tuning of motor vehicles.

2. European Union trade mark application No 11 276 301 is rejected for all the above goods and services. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 11 276 301 , namely against all the goods and services in Classes 7, 9, 11, 12, 35 and 37. The opposition was initially based on international registrations No 542 763 designating Spain, the Czech Republic, Austria, Bulgaria, Hungary, Germany and France and No 863 418 designating the European Union, both for the figurative mark , as well as No 542 762 designating Austria, Germany and France for the figurative mark , and German trade mark registrations No 641 584 for the word mark ‘Man’ and No 981 579 for the figurative mark . The opponent initially invoked Article 8(1)(b) and Article 8(5) EUTMR.

SUMMARY OF THE FACTS

On 15/08/2016 the Opposition Division rendered a decision that resulted in the rejection of the opposition on the grounds that there was no likelihood of confusion within the meaning of Article 8(1)(b) EUTMR, and that it was unlikely that the relevant public would make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them within the meaning of Article 8(5) EUTMR.

The decision was appealed and the First Board of Appeal decided in case R 1677/2016-1 on 14/09/2017. The Board’s decision partially annulled the contested decision to the extent that it rejected the opposition under Article 8(5) EUTMR, dismissed the appeal in the remainder and remitted the case to the Opposition Division for further examination.

The Board considered that it was relevant that the earlier marks enjoyed a very high degree of reputation in Germany for ‘trucks, lorries, coaches, buses, engines, components and parts for vehicles’, as well as for engines in general. It further noted that ‘MAN’ was inherently distinctive and did not describe any characteristic of the goods and services of the earlier marks. Therefore, it concluded that it was possible that a part of the German public, even if their attention was drawn to the ending ‘DO’, would view in the mark applied for the connection with the word ‘MAN’, particularly when they encountered the contested mark used on identical goods and services, or goods and services in the same or closely related sectors. Consequently, the Board considered that a link would be established for those goods and services that were identical or similar in nature or were closely connected with those for which the earlier marks enjoy reputation.

Therefore, inasmuch as the Opposition Division had presumed that the goods and services at issue were identical or similar, the Board considered it appropriate to remit the case to the Opposition Division in order for it to carry out a fully comprehensive and in-depth assessment of the nature of the goods and services and their degree of closeness or dissimilarity and the examination of the third condition for the application of Article 8(5) EUTMR, namely, the existence of a risk that the use without due cause of the mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier marks.

The decision was appealed and the Court decided in case T‑792/17 on 12/07/2019. The Court’s decision annulled the decision of the First Board of Appeal of 14/09/2017 (Case R 1677/2016-1) to the extent that it concluded that there was no likelihood of confusion between the contested EUTM and the earlier international registration No 863 418 designating the European Union, and dismissed the action as to the remainder.

The Court noted that the contested decision did not contain any reasoning specific to international registration No 863 418 and the services in Class 35 that it covers. Consequently, the Board of Appeal provided no indication at all that enabled the Court to understand to what extent the relevant factors, taken globally, did not make it possible to conclude that there was a likelihood of confusion in respect of that earlier international registration.

The Court concluded that the contested decision was inadequately reasoned as regards, at the very least, the definition of the relevant public and its level of attention and the global assessment of the likelihood of confusion as regards that earlier international registration.

Therefore, the Court considered it necessary to annul the contested decision on the ground that the Board of Appeal’s statement of reasons was inadequate as regards that registration, without it being necessary to examine the arguments relating to the substance raised by the applicant in its application.

The Second Board of Appeal decided in case R 2314/2019-2 on 05/02/2020. It found that no likelihood of confusion existed between earlier international registration No 863 418 and the contested EUTM with regard to the relevant services in Class 35. The Board dismissed the appeal in relation to the grounds of opposition laid down in Article 8(1)(b) EUTMR, and remitted the case to the Opposition Division for further examination in relation to the remaining grounds of opposition laid down in Article 8(5) EUTMR.

The opponent invoked Article 8(5) EUTMR insofar the opposition is based on international registrations No 542 762 for the figurative mark designating Austria, Germany and France and No 542 763 for the figurative mark designating Spain, the Czech Republic, Austria, Bulgaria, Hungary, Germany and France.

Reputation, which was claimed for the territories of Germany and Austria with regard to these earlier marks, is a requirement of Article 8(5) EUTMR. Since the Boards of Appeal have acknowledged ‘a very high degree of reputation’ in relation to both marks for the territory of Germany only, what remains to be assessed by the Opposition Division is the opposition based on the aforementioned international registrations designating Germany and Article 8(5) EUTMR.

However, following the instructions of the Board of Appeal in the decision of 14/09/2017, R 1677/2016-1, the Opposition Division will limit its assessment to a fully comprehensive and in-depth assessment of the nature of the goods and services and their degree of closeness or dissimilarity and the examination of the third condition for the application of Article 8(5) EUTMR, namely, the existence of a risk that the use without due cause of the mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier marks.

The similarity of the signs at issue and the reputation of the earlier marks have been discussed exhaustively in the previous decisions by the Opposition Division, the Boards of Appeal and the Court. Moreover, the Board of Appeal has found that a link would be established for those goods and services that were identical or similar in nature or were closely connected with those for which the earlier marks enjoy reputation. Therefore, the present assessment of the opposition under Article 8(5) EUTMR will be based on those findings.

PRELIMINARY REMARKS

The opponent was asked to submit evidence of the renewal of earlier international registrations No 542 762 and No 542 763. On 17/07/2020, within the time limit, the opponent submitted extracts from WIPO’s database with regard to those marks.

The Opposition Division notes that international registration No 542 763 was represented as the figurative mark in the notice of opposition and in the documents initially provided within the time limit to substantiate the opposition, whereas the documents submitted on 17/07/2020 show a different mark with an additional figurative element, namely the following:

However, in any case, international registration No 542 762 contains less figurative elements than international registration No 542 763. Moreover, both international registration No 542 762 and No 542 763 cover the same scope of goods and services, and the Boards of Appeal have found that they enjoy reputation for the same goods and in the same territory.

Therefore, for reasons of procedural economy, the Opposition Division will not enter into the question if earlier international registration No 542 763 has been sufficiently substantiated, but the assessment of the opposition will instead continue on the basis of earlier international registration No 542 762 only.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark shall not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met:

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08, & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. Reputation of the earlier trade mark

Reference is made to the findings of the Board of Appeal in its decision of 14/09/2017, R 1677/2016-1, which was subsequently confirmed by the Court’s decision of 12/07/2019 in Case T‑792/17.

The Board of Appeal concluded that there can be no doubt that the earlier mark enjoyed exceptional reputation in at least Germany for trucks, lorries, coaches, buses, engines and parts for vehicles, as well as for engines in general at the filing date of the application.

2. The signs

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 given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

In its decision of 14/09/2017, R 1677/2016-1, which was subsequently confirmed by the Court’s decision of 12/07/2019 in Case T‑792/17, the Board of Appeal essentially concurred with the initial assessment of the Opposition Division on the similarity of the signs. Reference is made to those findings, the outcome of which was the following:

Visually, the signs are similar to a low degree.

Aurally, the signs are similar to an average degree.

Conceptually, the German-speaking public will most likely understand ‘MANDO’ as meaningless and will not perceive that it contains a connection with the English word ‘man’. As regards the earlier mark, its sole verbal element is the term ‘MAN’, which is a very basic word in English and is close to the German equivalent ‘Mann’. It is, therefore, possible that the relevant German-speaking public will perceive in the earlier mark the reference to the notion of a ‘man’. The marks are conceptually dissimilar from the perspective of the German-speaking public perceiving in only the earlier mark the reference to the notion of a ‘MAN’.

The Opposition Division notes that conceptual comparison is not possible with regard to the part of the public that does not perceive the aforesaid connotation in the earlier mark. In that case, both marks will be perceived as meaningless, and the conceptual aspect does not influence the assessment of the similarity of the signs.

Taking into account that the signs have been found similar in at least one aspect of the comparison, the examination of the existence of a risk of injury will proceed.

3. The ‘link’ between the signs

As seen above, the earlier mark is reputed and the signs are similar to some extent. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C‑408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 42):

 the degree of similarity between the signs;

 the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

 the strength of the earlier mark’s reputation;

 the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

 the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

In its decision of 14/09/2017, R 1677/2016-1, the Board of Appeal held that, whilst the likelihood of confusion is a factor, its absence cannot mean that the relevant public will not establish a link.

It further found that it is relevant that the earlier mark enjoys a very high degree of reputation in Germany for ‘trucks, lorries, coaches, buses, engines, components and parts for vehicles’, as well as for engines in general.

‘MAN’ is inherently distinctive and does not describe any characteristic of the goods and services of the earlier mark.

The Board of Appeal, therefore, held that it is possible that a part of the German public, even if their attention is drawn to the ending ‘DO’, will view in the mark applied for the connection with the word ‘MAN’, particularly when they encounter the contested mark used on identical goods and services, or goods and services in the same or closely related sectors. Consequently, the Board considered that a link will be established for those goods and services that are identical or similar in nature or are closely connected with those for which the earlier mark enjoys reputation.

The goods for which the earlier mark enjoys reputation are the following:

Trucks, lorries, coaches, buses, engines, components and parts for vehicles, and engines in general, insofar as they are covered by the registered goods in Classes 7 and 12.

The contested goods and services are the following:

Class 7: Car lifts, Kick starters for motorcycles, Bicycle assembling machines, Machine tools, Drilling machines {for metalworking}, Milling machines {for metalworking}, Hydraulic presses {for metalworking}, Forging moulds, Drilling machines, Machining centers, Drilling machines {except for woodworking}, Lathes {except for woodworking}, Lathes {for metalworking}, Air condensers, Superchargers, Condensers {steam}{parts of machines}, Control mechanisms for machines/engines or motors, Control cables for machines/engines or motors, Shock absorbers for machine other than for vehicles, Spiral springs other than for vehicles, Rail antishocking materials other than for vehicles, Spring buffers other than for vehicles, Spring hydaulic buffers other than for vehicles, Airsprings other than for vehicles, Lamellar springs other than for vehicles, Shock absorber plungers{parts of machines}, Dashpot plungers {parts of machines}, Braking devices for machine other than for vehicles, Disk brakes other than for vehicles, Band brakes {machine elements not for land vehicles}, Brake linings other than for vehicles, Brake shoes other than for vehicles, Brake segments other than for vehicles, Block brakes{machine elements not for land vehicles}, Conical brakes other than for vehicles, Brakes for industrial machines, Brake pads other than for vehicles, Pressure reducers {parts of machines}, Grease rings {parts of machines}, Grease boxes {parts of machines}, Rings other than for land vehicles{parts of machines}, Roller bearings, Bearings {parts of machines}, Ball-bearings, Brushes {parts of machines}, Springs {parts of machines}, Universal Joints [Cardan joints], Lubricators {parts of machines}, Vehicle washing installations, Automatic washing machines for vehicles, Automatic parking installations, Machines for parking management {except for electric applications}, Parking machines, Rubber processing machines, Rubber forming machines, Rubber manufacturing machines, Rubber mixing machines, Plastic processing machines, Plastic working machines, Plastic manufacturing machines, Stators {parts of machines}, Alternators, Alternating current servo motors, Starters for motors and engines, Starter alternators, Motors {except for land vehicles}, Current generators, Dynamo Brushes, Servomotors, Driving motors other than for vehicles, Servo motors other than for vehicles, Electric motors other than for vehicles, DC motors other than for vehicles, Driving motors other than for land vehicles, Motors other than for land vehicles, Motors {electric} other than for land vehicles, Planetary gear motors, Bicycle dynamos, Electric starter motors, Igniting magnetos, Electrostatic generators, Direct current motors, DC generators, Carbon brushes {electricity}.

Class 9: Optical apparatus and instruments, Optical Lenses, Optical goods, Multiple purpose cameras, Multiframe view cameras, Digital cameras, Camera containing a linear image sensor, Infrared cameras, Accelerometers, Acceleration sensors, Range finders, Speed Indicators, Speed checking apparatus for vehicles, Kilometer recorders for vehicles, Automatic indicators of low Pressure in vehicle tires [tyres], Pressure sensors, Automatic pressure control apparatus, Pressure measuring apparatus, Temperature sensors, Gyrometers, Bicycle speedometers, Alarms, Alarms, Attenuators, Voltage regulators for vehicles, Transformers {electricity}, Switches {electric}, Light Dimmers (regulators){electric}, Regulating apparatus {electric}, Adapters {electricity}, Inverters {electricity}, Control panels {electricity}, Armatures {electricity}, Resistances {electric}, Converters {electric}, Connections {electric}, Contacts {electric}, Electrical controllers, Electrical controlling devices, Coils{electric}, Current converters, Electric current switches, Electric current control devices, Current limiters, Voltage stabilizing power supply, Voltage stabilizers, Voltage regulators, Power switches, Electromagnetic Coils, Current rectifiers, Rectifier modules, Electric apparatus for Commutation, Commutators, Power transformers for amplification, Circuit breakers, Differential switches, Choking coils (impedance), Condensers [capacitors], Battery charge devices, Accumulators {electric}{for vehicles}, Battery cases, Accumulators {electric}, Wavemeters, Car video recorders, Detectors, Interfaces for detectors, High-frequency apparatus, Radar apparatus, Microwave antennae, Antennas for wireless communications apparatus, Direction finders, Navigation apparatus for vehicles(on-board computers), Aerials, Antennae filters, Remote control apparatus, Satellite navigational apparatus, Car navigators, Car aerials, Telecommunication machines and implements, Transmitters {telecommunication}, Transmitting sets {telecommunication}, Frequency converters, Radar receivers with amplifiers, Car antennae, Communications apparatus for vehicles, Telecommunications transmitters, Apparatus for transmission of communication, Navigational instruments, Portable communications apparatus, Ultrasonic sensors, Diodes, Semi-conductors, Semi-conductor memories, Semi-conductor memory units, Semiconductor elements, Semi-conductor wafers, Semiconductor power elements, Light emitting diodes [LED], Wafers (silicon slices), Printed circuit boards, Testing apparatus for testing printed circuit boards, Electronic circuit board, Connectors for electronic circuits, Integrated circuits, Circuit boards provided with integrated circuits, Integrated circuit module, Chips [integrated circuits], Transistors, Printed circuits, Circuit boards.

Class 11: Water purifiers for household purposes, Heating apparatus, Water heaters, Hot air apparatus, Refrigerating chambers, Refrigerating Containers, Air conditioners, Filters for air conditioning, Air conditioning installations, Air conditioning apparatus, Fans {air-conditioning}, Fans {parts of air conditioning installations}, Heating and cooling systems for motor cars, Air conditioners for automobiles, Ventilation [air-conditioning] installations and apparatus for automobiles, Heaters for automobiles, Bicycle lights, Bicycle lamps, Lighting apparatus and devices for bicycles, Air purifiers {for household purposes}, Air sterilizers, Air purifying apparatus and machines, Humidifiers, Electric refrigerators {for household purposes}, Water purifiers for household purposes {electric}, Dehumidifiers {for household purposes}, Electric refrigerators.

Class 12: Horns for motor cars, Anti-theft devices for motor cars, Wheel rims for motor cars, Cycles, Parts and accessories for cycles, Cycle rims, Wheels for motorcycles, Cycle spokes, Cycle stands, Cycle frames, Cycle handle bars, Cycle hubs, Two-wheeled motor vehicles, Air bags {safety devices for automobiles}, Steering wheels for automobiles, Reversing alarms for automobiles, Parts and accessories for automobiles, Electric cars, Tandem bicycles, Mopeds, Touring bicycles, Delivery bicycles, Bicycles, Bicycle rims, Wheels for bicycles/cycles, Bicycle spokes, Frames {for luggage carriers}{for bicycles}, Bicycle stands, Bicycle frames, Bicycle handle bars, Parts and accessories for bicycles, Handlebars, Shock absorbing springs for motor cars, Spiral springs for vehicles, Shock absorbing springs for vehicles, Spring-assisted hydraulic shock absorbers for vehicles, Air springs for vehicles, Suspension Shock absorbers for vehicles, Shock absorbing Springs for vehicles, Suspension shock absorbers for vehicles, Shock absorbers for automobiles, Brakes for motor cars, Brake linings for motor cars, Brake shoes for motor cars, Brake segments for motor cars, Disk brakes for vehicles, Band brakes for vehicles, Brakes for vehicles, Brake facings for vehicles, Brake linings for vehicles, Brake shoes for vehicles, Brake systems for vehicles, Braking systems for vehicles and parts thereof, Brake segments for vehicles, Brake Shoes for vehicles, Block brakes for vehicles, Conical brakes for vehicles, Non-skid devices for vehicle tires[tyres], Braking devices for vehicles, Cycle brakes, Band brakes {for land vehicles}, Block brakes {for land vehicles}, Brake pads for automobiles, Brakes for bicycles/cycles, Bicycle brakes, Gearboxes for motor cars, Crankcases for components for motor cars{other than for engines}, Clutch mechanisms for motor cars, Torque converters for motor cars, Gears for cycles, Reduction gears for land vehicles, Gears for land vehicles, Gear boxes for land vehicles, Transmission shafts for land vehicles, Gears for vehicles, Cranks for cycles, Bearings for land vehicles, Axis for land vehicles, Couplings for land vehicles, Axle journals, Trailer couplings, Electric motors for motor cars, Motors for cycles, Alternating current [AC] motors for land vehicles, Driving motors for land vehicles, Motors for land vehicles, Servomotors for land vehicles, Motors {electric}{for land vehicles}, Direct current [DC] motors for land vehicles.

Class 35: Import-export agencies, Administrative processing of purchase orders, Wholesale services for freezers, Retail services for hot-water heating apparatus, Wholesale services for automobiles, Commercial intermediary service in the field of bicycles, Retail services for tires[tyres] and tubes, Wholesale services for antifreeze, Retail service for liquid fuels, Commercial intermediary services in the field of parts of vehicles, Commercial intermediary services in the field of articles of vehicles, Commercial intermediary services in the field of renewal parts of vehicles, Trade agency, Trade consultancy, Trade brokerage, Offer services [trade].

Class 37: Air conditioning apparatus installation and repair, Heating equipment installation and repair, Freezing equipment installation and repair, Vehicle breakdown assistance [repair], Vehicle greasing, Motor vehicle maintenance and repair, Repair of bicycles, Repair of generators, Provision of coin-operated car washing machines, Rental of carwashing apparatus, Car wash, Vehicle polishing, Anti-rust treatment for vehicles, Vehicle wash, Vehicle cleaning, Automobile cleaning and car washing, Automobile decoration, Tuning of motor vehicles.

The Opposition Division considers that most of the goods and services at issue are identical (included in one another or overlap), similar or closely connected.

In particular, as regards the contested goods in Class 7, most of them constitute engines or items that are commonly built into engines or vehicles as their parts and components, such as kick starters for motorcycles, control mechanisms for machines/engines or motors, alternating current servo motors, bicycle dynamos. Furthermore, they include car lifts, which are used when repairing cars, a service that requires particular know-how in relation to vehicles and mechanics, and is commonly offered by licensed garages.

A similar reasoning applies with regard to the contested goods in Classes 9, 11 and 12, the vast majority of which can also be used with or built into vehicles as parts, components or accessories, such as digital cameras, speed indicators, bicycle speedometers, alarms, battery charge devices, car navigators, heating apparatus, refrigerating chambers (e.g. for refrigerating trucks) or air conditioners.

As regards the contested services, the Opposition Division notes that they include retail, wholesale and commercial intermediary services in relation to vehicles and their parts, components and accessories, as well as of goods needed for their functioning, such as fuels and antifreeze in Class 35 and breakdown assistance, maintenance, repair and tuning services for vehicles and/or engines in Class 37.

Therefore, consumers of goods for which the earlier mark enjoys reputation, such as trucks, engines or parts of vehicles, are likely to come into contact also with most of the contested goods and services, for example, because they need them as spare parts, accessories or for the functioning of their vehicles or engines. Consequently, the majority of the contested goods and services in Classes 7, 9, 11, 12, 35 and 37 are either identical, similar or closely connected to the goods in relation to which the earlier mark enjoys reputation.

In the light of the findings of the Board of Appeal in its decision of 14/09/2017, R 1677/2016-1, it is considered that when encountering the contested mark on those goods and services, the relevant consumers will be likely to associate it with the earlier sign, that is to say, establish a mental ‘link’ between the signs. However, although a ‘link’ between the signs is a necessary condition for further assessing whether detriment or unfair advantage are likely, the existence of such a link is not sufficient, in itself, for a finding that there may be one of the forms of damage referred to in Article 8(5) EUTMR (26/09/2012, T‑301/09, CITIGATE, EU:T:2012:473, § 96).

The aforesaid, however, does not apply with regard to all of the contested goods and services. For example, although consumers of trucks are likely to make use of washing and parking installations, the respective goods and services are limited to the fields of cleaning and parking, as they are not needed for and do not require any know-how in relation to the functioning of vehicles. Other of those goods are machines and machine tools in Class 7, refrigerating, heating or air purifying apparatus in Class 11 not usually built into vehicles but rather for household purposes, wholesale and retail services in relation to goods unrelated to engines, vehicles and their parts as well as import-export and trade services in general in Class 35, and repair and installation services in relation to cooling and heating equipment in Class 37.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them, in relation to the following contested goods and services:

Class 7: Bicycle assembling machines, Machine tools, Drilling machines {for metalworking}, Milling machines {for metalworking}, Hydraulic presses {for metalworking}, Forging moulds, Drilling machines, Machining centers, Drilling machines {except for woodworking}, Lathes {except for woodworking}, Lathes {for metalworking}, Vehicle washing installations, Automatic washing machines for vehicles, Automatic parking installations, Machines for parking management {except for electric applications}, Parking machines, Rubber processing machines, Rubber forming machines, Rubber manufacturing machines, Rubber mixing machines, Plastic processing machines, Plastic working machines, Plastic manufacturing machines.

Class 9: Testing apparatus for testing printed circuit boards.

Class 11: Water purifiers for household purposes, Water heaters, Air purifiers {for household purposes}, Air sterilizers, Air purifying apparatus and machines, Humidifiers, Electric refrigerators {for household purposes}, Water purifiers for household purposes {electric}, Dehumidifiers {for household purposes}, Electric refrigerators.

Class 35: Import-export agencies, Administrative processing of purchase orders, Wholesale services for freezers, Retail services for hot-water heating apparatus, Trade agency, Trade consultancy, Trade brokerage, Offer services [trade].

Class 37: Air conditioning apparatus installation and repair, Heating equipment installation and repair, Freezing equipment installation and repair, Provision of coin-operated car washing machines, Rental of carwashing apparatus, Car wash, Vehicle wash, Vehicle cleaning, Automobile cleaning and car washing, Automobile decoration.

Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected insofar it is directed against the aforementioned goods and services.

4. Risk of injury

Use of the contested mark will fall under Article 8(5) EUTMR when any of the following situations arise:

 it takes unfair advantage of the distinctive character or the repute of the earlier mark;

 it is detrimental to the repute of the earlier mark;

 it is detrimental to the distinctive character of the earlier mark.

Although detriment or unfair advantage may be only potential in opposition proceedings, a mere possibility is not sufficient for Article 8(5) EUTMR to be applicable. While the proprietor of the earlier mark is not required to demonstrate actual and present harm to its mark, it must ‘adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment’ (06/07/2012, T‑60/10, Royal Shakespeare, EU:T:2012:348, § 53).

It follows that the opponent must establish that detriment or unfair advantage is probable, in the sense that it is foreseeable in the ordinary course of events. For that purpose, the opponent should file evidence, or at least put forward a coherent line of argument demonstrating what the detriment or unfair advantage would consist of and how it would occur, that could lead to the prima facie conclusion that such an event is indeed likely in the ordinary course of events.

In the present case the opponent claims the following:

The use of the contested mark would be an indicator to the public that the applicant’s goods and services are in some way connected to the opponent’s goods, or suggest that they have been approved by the opponent. Consequently, the contested mark will take unfair advantage of the earlier mark, as it will be immediately associated with the earlier mark, and the opponent’s investments and the strong reputation of the mark, which has been built for years, will lead to a considerable facilitation of the marketing and sales of the applicant’s goods and services.

In other words, the opponent claims that the use of the contested trade mark would take unfair advantage of the distinctive character or the repute of the earlier trade mark.

Unfair advantage (free-riding)

Unfair advantage in the context of Article 8(5) EUTMR covers cases where there is clear exploitation and ‘free‑riding on the coat‑tails’ of a famous mark or an attempt to trade upon its reputation. In other words, there is a risk that the image of the mark with a reputation or the characteristics which it projects are transferred to the goods and services covered by the contested trade mark, with the result that the marketing of those goods and services is made easier by their association with the earlier mark with a reputation (06/07/2012, T‑60/10, Royal Shakespeare, EU:T:2012:348, § 48; 22/03/2007, T‑215/03, Vips, EU:T:2007:93, § 40).

The opponent bases its claim on the following:

• The opponent is one of the market leaders in relation to heavy motor vehicles.

• The earlier mark has been used intensively and consistently and, consequently, enjoys a high degree of distinctiveness and reputation.

• The opponent has made a significant investment in extensively advertising and promoting the earlier mark.

• The public would associate the contested sign in relation to identical, similar and dissimilar goods and services with the earlier mark.

• The use of the contested mark would be an indicator to the public that the applicant’s goods and services are in some way connected to the opponent’s goods, or suggest that they have been approved by the opponent. Consequently, the contested mark will take unfair advantage of the earlier mark, as it will be immediately associated with the earlier mark, and the opponent’s investments and the strong reputation of the mark, which has been built for years, will lead to a considerable facilitation of the marketing and sales of the applicant’s goods and services.

The Opposition Division notes that the earlier mark has a reputation for trucks, lorries, coaches, buses, engines, components and parts for vehicles, and engines in general, insofar as they are covered by the registered goods in Classes 7 and 12. The image attributed to the earlier mark, according to the evidence submitted, is that of innovation, safety and efficiency, in the sense of superior, reliable, economic and environmentally friendly performance. It is reasonable to assume that the earlier mark’s positive image is transferred to the contested goods and services that imply a link with this positive image.

This applies to those contested goods in Class 7 which constitute engines or items that are commonly built into engines or vehicles as their parts and components, as well as to goods which are used in relation to the opponent’s goods, for instance, when repairing cars, a service that requires particular know-how in relation to vehicles and mechanics, and is commonly offered by licensed garages.

A similar reasoning applies with regard to the contested goods in Classes 9, 11 and 12, insofar as they can also be used with or built into vehicles as parts, components or accessories. Although the earlier mark is not particularly reputed for bicycles, the latter constitute vehicles and are nowadays often equipped with electric motors. Moreover, they fit into the earlier mark’s image of environmentally friendly performance.

As regards the contested services in Classes 35 and 37, they include retail, wholesale and commercial intermediary services in relation to vehicles and their parts, components and accessories, as well as of goods needed for their functioning, and breakdown assistance, maintenance, repair and tuning services for vehicles and/or engines. Retail, wholesale, repair, maintenance and tuning services are commonly offered by authorised dealers and licensed garages and require particular know-how in relation to vehicles and their functioning. Particular goods needed for the functioning of vehicles are often also provided or at least recommended by producers of those vehicles.

The relevant public will recognise the earlier mark even outside its traditional market segment, namely heavy motor vehicles, parts thereof and engines, precisely because of its reputation, in the sense that it reflects the good and attractive image, as set out above, which could positively influence the choice of the consumer.

On the basis of the above, the Opposition Division concludes that the contested trade mark is likely to take unfair advantage of the repute of the earlier trade mark when used for the following contested goods and services:

Class 7: Car lifts, Kick starters for motorcycles, Air condensers, Superchargers, Condensers {steam}{parts of machines}, Control mechanisms for machines/engines or motors, Control cables for machines/engines or motors, Shock absorbers for machine other than for vehicles, Spiral springs other than for vehicles, Rail antishocking materials other than for vehicles, Spring buffers other than for vehicles, Spring hydaulic buffers other than for vehicles, Airsprings other than for vehicles, Lamellar springs other than for vehicles, Shock absorber plungers {parts of machines}, Dashpot plungers{parts of machines}, Braking devices for machine other than for vehicles, Disk brakes other than for vehicles, Band brakes {machine elements not for land vehicles}, Brake linings other than for vehicles, Brake shoes other than for vehicles, Brake segments other than for vehicles, Block brakes {machine elements not for land vehicles}, Conical brakes other than for vehicles, Brakes for industrial machines, Brake pads other than for vehicles, Pressure reducers {parts of machines}, Grease rings {parts of machines}, Grease boxes {parts of machines}, Rings other than for land vehicles {parts of machines}, Roller bearings, Bearings {parts of machines}, Ball-bearings, Brushes {parts of machines}, Springs {parts of machines}, Universal Joints [Cardan joints], Lubricators {parts of machines}, Stators {parts of machines}, Alternators, Alternating current servo motors, Starters for motors and engines, Starter alternators, Motors {except for land vehicles}, Current generators, Dynamo Brushes, Servomotors, Driving motors other than for vehicles, Servo motors other than for vehicles, Electric motors other than for vehicles, DC motors other than for vehicles, Driving motors other than for land vehicles, Motors other than for land vehicles, Motors {electric} other than for land vehicles, Planetary gear motors, Bicycle dynamos, Electric starter motors, Igniting magnetos, Electrostatic generators, Direct current motors, DC generators, Carbon brushes {electricity}.

Class 9: Optical apparatus and instruments, Optical Lenses, Optical goods, Multiple purpose cameras, Multiframe view cameras, Digital cameras, Camera containing a linear image sensor, Infrared cameras, Accelerometers, Acceleration sensors, Range finders, Speed Indicators, Speed checking apparatus for vehicles, Kilometer recorders for vehicles, Automatic indicators of low Pressure in vehicle tires[tyres], Pressure sensors, Automatic pressure control apparatus, Pressure measuring apparatus, Temperature sensors, Gyrometers, Bicycle speedometers, Alarms, Alarms, Attenuators, Voltage regulators for vehicles, Transformers {electricity}, Switches {electric}, Light Dimmers (regulators){electric}, Regulating apparatus {electric}, Adapters {electricity}, Inverters {electricity}, Control panels {electricity}, Armatures {electricity}, Resistances {electric}, Converters {electric}, Connections {electric}, Contacts {electric}, Electrical controllers, Electrical controlling devices, Coils {electric}, Current converters, Electric current switches, Electric current control devices, Current limiters, Voltage stabilizing power supply, Voltage stabilizers, Voltage regulators, Power switches, Electromagnetic Coils, Current rectifiers, Rectifier modules, Electric apparatus for Commutation, Commutators, Power transformers for amplification, Circuit breakers, Differential switches, Choking coils (impedance), Condensers [capacitors], Battery charge devices, Accumulators {electric}{for vehicles}, Battery cases, Accumulators {electric}, Wavemeters, Car video recorders, Detectors, Interfaces for detectors, High-frequency apparatus, Radar apparatus, Microwave antennae, Antennas for wireless communications apparatus, Direction finders, Navigation apparatus for vehicles (on-board computers), Aerials, Antennae filters, Remote control apparatus, Satellite navigational apparatus, Car navigators, Car aerials, Telecommunication machines and implements, Transmitters {telecommunication}, Transmitting sets {telecommunication}, Frequency converters, Radar receivers with amplifiers, Car antennae, Communications apparatus for vehicles, Telecommunications transmitters, Apparatus for transmission of communication, Navigational instruments, Portable communications apparatus, Ultrasonic sensors, Diodes, Semi-conductors, Semi-conductor memories, Semi-conductor memory units, Semiconductor elements, Semi-conductor wafers, Semiconductor power elements, Light emitting diodes [LED], Wafers (silicon slices), Printed circuit boards, Electronic circuit board, Connectors for electronic circuits, Integrated circuits, Circuit boards provided with integrated circuits, Integrated circuit module, Chips [integrated circuits], Transistors, Printed circuits, Circuit boards.

Class 11: Heating apparatus, Hot air apparatus, Refrigerating chambers, Refrigerating Containers, Air conditioners, Filters for air conditioning, Air conditioning installations, Air conditioning apparatus, Fans {air-conditioning}, Fans{parts of air conditioning installations}, Heating and cooling systems for motor cars, Air conditioners for automobiles, Ventilation [air-conditioning] installations and apparatus for automobiles, Heaters for automobiles, Bicycle lights, Bicycle lamps, Lighting apparatus and devices for bicycles.

Class 12: Horns for motor cars, Anti-theft devices for motor cars, Wheel rims for motor cars, Cycles, Parts and accessories for cycles, Cycle rims, Wheels for motorcycles, Cycle spokes, Cycle stands, Cycle frames, Cycle handle bars, Cycle hubs, Two-wheeled motor vehicles, Air bags {safety devices for automobiles}, Steering wheels for automobiles, Reversing alarms for automobiles, Parts and accessories for automobiles, Electric cars, Tandem bicycles, Mopeds, Touring bicycles, Delivery bicycles, Bicycles, Bicycle rims, Wheels for bicycles/cycles, Bicycle spokes, Frames {for luggage carriers}{for bicycles}, Bicycle stands, Bicycle frames, Bicycle handle bars, Parts and accessories for bicycles, Handlebars, Shock absorbing springs for motor cars, Spiral springs for vehicles, Shock absorbing springs for vehicles, Spring-assisted hydraulic shock absorbers for vehicles, Air springs for vehicles, Suspension Shock absorbers for vehicles, Shock absorbing Springs for vehicles, Suspension shock absorbers for vehicles, Shock absorbers for automobiles, Brakes for motor cars, Brake linings for motor cars, Brake shoes for motor cars, Brake segments for motor cars, Disk brakes for vehicles, Band brakes for vehicles, Brakes for vehicles, Brake facings for vehicles, Brake linings for vehicles, Brake shoes for vehicles, Brake systems for vehicles, Braking systems for vehicles and parts thereof, Brake segments for vehicles, Brake Shoes for vehicles, Block brakes for vehicles, Conical brakes for vehicles, Non-skid devices for vehicle tires[tyres], Braking devices for vehicles, Cycle brakes, Band brakes {for land vehicles}, Block brakes {for land vehicles}, Brake pads for automobiles, Brakes for bicycles/cycles, Bicycle brakes, Gearboxes for motor cars, Crankcases for components for motor cars {other than for engines}, Clutch mechanisms for motor cars, Torque converters for motor cars, Gears for cycles, Reduction gears for land vehicles, Gears for land vehicles, Gear boxes for land vehicles, Transmission shafts for land vehicles, Gears for vehicles, Cranks for cycles, Bearings for land vehicles, Axis for land vehicles, Couplings for land vehicles, Axle journals, Trailer couplings, Electric motors for motor cars, Motors for cycles, Alternating current [AC] motors for land vehicles, Driving motors for land vehicles, Motors for land vehicles, Servomotors for land vehicles, Motors {electric}{for land vehicles}, Direct current [DC] motors for land vehicles.

Class 35: Wholesale services for automobiles, Commercial intermediary service in the field of bicycles, Retail services for tires[tyres] and tubes, Wholesale services for antifreeze, Retail service for liquid fuels, Commercial intermediary services in the field of parts of vehicles, Commercial intermediary services in the field of articles of vehicles, Commercial intermediary services in the field of renewal parts of vehicles.

Class 37: Vehicle breakdown assistance [repair], Vehicle greasing, Motor vehicle maintenance and repair, Repair of bicycles, Repair of generators, Vehicle polishing, Anti-rust treatment for vehicles, Tuning of motor vehicles.

Other types of injury

The opponent has not invoked other types of injury aside from unfair advantage.

Moreover, as seen above, the existence of a risk of injury is an essential condition for Article 8(5) EUTMR to apply. The risk of injury may be of three different types. For an opposition to be well founded in this respect it is sufficient if only one of these types is found to exist. In the present case, as seen above, the Opposition Division has already concluded that the contested trade mark would take unfair advantage of the distinctive character or repute of the earlier trade mark.

5. Conclusion

Considering all the above, the opposition is well founded under Article 8(5) EUTMR insofar as it is directed against the goods and services listed above under ‘Unfair advantage (free-riding)’.

The opposition is not successful insofar as the remaining goods and services are concerned. A separate assessment of the opposition based on international registration No 542 763 is not necessary.

As explained above, international registration No 542 763 contains additional figurative elements and covers the same scope of goods and services as international registration No 542 762, and the Boards of Appeal have found that both marks enjoy reputation for the same goods and in the same territory. Consequently, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Oana-Alina STURZA

Natascha GALPERIN

Judit NÉMETH

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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.