OPPOSITION No B 2 437 344

Welch Allyn, Inc., 4341 State Street Road, 13153 Skaneateles Falls, New York, United States of America (opponent), represented by Gevers, Brussels Airport Business Park, Holidaystraat, 5, 1831 Diegem, Belgium (professional representative)

a g a i n s t

Nant Holdings IP, Llc, 10182 Culver Blvd, 90232 Culver City, California, United States of America (applicant), represented by Cms Cameron Mckenna Nabarro Olswang Llp, Cannon Place, 78 Cannon St., EC4N 6AF London, United Kingdom (professional representative).

On 26/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 437 344 is upheld for all the contested goods.

2. European Union trade mark application No 13 145 305 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 European Union trade mark application No 13 145 305  ‘DEVICECONX’. The opposition is based on European Union trade mark registration No 5 435 078 ‘CONNEX’. The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition, now Article 47(2) and (3) EUTMR), if the applicant so requests, the opponent must furnish proof that, during the five-year period 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 for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade mark on which the opposition is based.

The contested application was published on 19/09/2014. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in the European Union from 19/09/2009 to 18/09/2014 inclusive.

The request was submitted in due time and is admissible as the earlier trade mark was registered more than five years prior to the relevant date mentioned above.

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

Class 9: Computer software system comprising computer software and monitors and detectors of patient conditions for capturing and documenting patient vitals in electronic files.

According to Rule 22(3) EUTMIR (in the version in force at the moment of filing the request for proof of use), the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 25/08/2017, in accordance with Rule 22(2) EUTMIR (in the version in force at the moment of filing the request for proof of use), the Office gave the opponent until 30/10/2017 to submit evidence of use of the earlier trade mark. On 30/10/2017, within the time limit, the opponent submitted evidence of use.

As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data.

The evidence to be taken into account is the following:

• Attachments No 1 and 2: 2 press releases, as indicated by the opponent (dated 2012 and 2014), in English: the first press release bears the name of the opponent and is entitled ‘Welch Allyn to Showcase Unique Patient Data Management Solutions at the 2012 World of Health IT Congress’. It refers to a forthcoming presentation of ‘Connex® Integrated Wall System’ in Copenhagen, Denmark. It also refers to ‘Connex® Vital Signs Monitor (VSM)’ as ‘a full-color, touch-screen vital signs device providing automatic measurements such as heart rate, blood pressure, temperature, pulse oximetry, weight and Total Hemoglobin; manual parameters such as respiration, height and pain level; and modifiers such as body position, O2 therapy details and others’. The second one, again originating from Welch Allyn refers to July 14, 2014 and to the release of a new scoring app for ‘Connex® Vital Signs Monitor’.

• Attachments No 3-7: 5 Brochures, in English and German, bearing copyright notes or dated in 2009, 2010 (two of them) and 2016 (two of them). The brochures, dated in 2010 refer to a company with address in the USA. One of them depicts the earlier sign in relation to ‘Vitals Signs Monitor’, which is explained to be a device, containing monitor that exhibits data and is ‘an advanced, easy-to-use device designed specifically for general-care use. It acts as three devices in one, with optimized workflows so you can customize it to the way your staff works’. It is also stated that it ‘is capable of two-way wireless communication. It associates patient numbers to names to help you properly identify patients at the bedside. Plus, it allows you to customize which ID fields are required and how they’re displayed, including simultaneous display of multiple forms of ID’. It is also specified that the device’s ‘wireless technology is built into the system. It’s an integrated, elegant solution that allows the monitor to act as a true mobile device, and works with your wireless network to make integration simple and seamless. Plus, two-way communication delivers up-to-date patient demographics, ensuring proper patient identification at the point of care´. The other brochure, dated in 2010, refers to the earlier mark in connection to ‘Vitals Management Software’. The remaining brochures refer to the earlier mark in relation to ‘Connectivity Software’ (2009); ‘spot monitor’ (2016 in German); ‘Connex Service Dashboard’ (2016 in German).

• Attachments No 8-10: Price lists (in English): ‘2012 Price List-Distributor Ordering Guide (EM Region)’, which refers to ‘Europe and Middle East Region’ and provides prices in Euro: it lists, inter alia, products with codes 64NXPE-2, 64NXXE-2, 64NXXX-2 and 64NXPX-2 (with explanation ‘Low Acuity Vitals’); Undated price list (the opponent claims that it refers to 2011), which lists, inter alia, items bearing the earlier mark; Price List for ‘Middle East’ (with effectivity 01/03/2013), which lists, inter alia, products with codes 64NXPE-2, 64NXXE-2, 64NXXX-2 and 64NXPX-2, which appear in the section called ‘Connex Vital-Signs Monitor’.

• Attachment No 11: 15 Invoices, dated between 22/11/2010 and 17/06/2013. The invoices are in English, French and German, issued by companies with the same name as the opponent (however with addresses in Ireland, Germany and France) to companies in Finland, Belgium, Germany, France and Ireland. There are products listed as 64NXPE-2, 64NXXE-2, 64NXXX-2, 64NXPX-2 (available in 13 invoices and are altogether 24 items, and one of the invoices refers to parts of the product with one of the codes mentioned above), where the price of the product is at around several thousand Euro. It is noted that products with the same codes are found in the submitted price lists and one of them refers to Connex Vital Signs Monitor.

• Attachment No 12: Product catalogue, in English, dated in 2017, and refers to the earlier mark in relation to, inter alia, ‘Spot Monitor’. For contact information it refers to a company placed in the UK (Welch Allyn UK Ltd.).

• Attachment No 13: 3 Photographs (one of them dated by the opponent 2014) and which according to the opponent refer to a conference held in Dusseldorf, Germany in 2014. On two of them the earlier sign could be seen.

Furthermore, on 12/07/2018, after expiry of the time limit, the opponent submits additional evidence. In the present case, the issue of whether or not the Office may exercise the discretion conferred on it by Article 95(2) EUTMR to take into account the additional evidence submitted on 12/07/2018 can remain open, as the evidence submitted within the time limit is sufficient to prove the required genuine use of the earlier trade mark.

Preliminary remarks

Some of the documents submitted (such as the invoices) refer to companies bearing the name Welch Allyn, but placed in countries different than the opponent, such as France and Ireland.

According to Article 18(2) EUTMR, use of the EUTM with the consent of the proprietor is deemed to constitute use by the proprietor.

The fact that the opponent submitted evidence of use of its mark by a third party implicitly shows that it consented to this use (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225).

To this extent, and in accordance with Article 18(2) EUTMR, the Opposition Division considers that the use made by these other companies (which may or may not be economically related to the opponent) was made with the opponent’s consent and thus is equivalent to use made by the opponent.

Furthermore, the applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods for which the earlier marks is registered.

The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition 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 applicant argues that the opponent does not prove place of use, as on some of the documents there are prices provided in USD and some of the documents refer to the USA.

However, all of the invoices refer to addresses in the European Union, as the companies these invoices are issued to are placed in Finland, Belgium, Germany, Ireland and France and the issuing company has its address in Ireland, Germany or France. Furthermore, the currency used on these invoices is Euro and the languages used are English, French and German. Moreover, one of the price lists specifically refer to Europe with the prices provided in Euro.

A connection could be found between some of the codes of the products listed on the invoices (e.g. codes 64NXPE-2, 64NXXE-2, 64NXXX-2, 64NXPX-2) and the same codes present on the price lists, which further refer to the product with description Connex Vital Signs Monitor. Even though this description is found in the price list concerning Middle East, products with the same codes are also found on the price list, concerning ‘Europe and Middle East Region’ (which provides prices in Euro). In the latter there is a product reference, namely ‘Low Acuity Vitals’ (where ‘acuity’ is ‘the level of severity of an illness’ and ‘one of the parameters considered in patient classification systems that are designed to serve as guidelines for allocation of nursing staff, to justify staffing decisions, and to aid in long-range projection of staffing and budget’, see https://medical-dictionary.thefreedictionary.com/acuity). Therefore, it is very likely that both lists refer to the same product, used for monitoring. It can be concluded that, even if the product might be marketed in the Middle East, the invoices (and the price list referring to European Union and Euro) refer to its marketing within the relevant territory as well.

Furthermore, two of the brochures, dated in 2010 point to the opponent (or economically related company) which address is in the USA. However, this does not exclude the possibility that a product originating from a company placed outside the EU, or even produced outside the relevant territory is actually marketed within the relevant territory. In the present case, one of the said brochures refers to products that are also present in the submitted price lists and invoices (‘Vital Signs Monitor’). Thus, it only further corroborates the information that is already derived from the invoices and/or related to them price lists. It is, therefore, concluded that the documents (invoices, price lists and brochure) are logically linked to one another.

Following from the above, it is considered that there is sufficient evidence related to the relevant territory, namely the European Union.

Time of use

It is noted that all of the invoices (on 13 of which appears the product code for the product Vital Signs Monitor) are dated within the relevant period. Two of the price lists (from 2012 and 2013) also refer to dates within the relevant timeframe.

Furthermore, two of the brochures (inter alia, the one that refers to ‘Vital Signs Monitor’) have a copyright note, dated in 2010. Even though, the copyright note does not necessarily reflect the dynamics of the update of the material, it nevertheless refers to a year that falls within the relevant timeframe. It is also noted that those brochures refer to medical equipment that is usually a product which period of elaboration and approval is lengthy (due to these products’ effects on health) and further requires significant financial investment. Furthermore, once approved, these devices (systems) do not usually undergo frequent changes, as such changes would also require approval (including often by the appropriate authorities) and additional costs. Finally, as explained above, the invoices dated within the relevant timeframe refer to product codes mentioned in price lists, which correspond to a product reflected in at least on one of those brochures. It is, therefore, reasonable to conclude that these documents (the brochures) provide information that is in relation to the relevant period of time.

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 EUTM proprietor at that time (27/01/2004, C‑259/02, Laboratoire de la mer, EU:C:2004:50). In the case at hand, the evidence referring to use outside the relevant period (some of the brochures and product catalogue) do not refer to or reflect the use made of the opponent’s mark within the relevant period. This evidence, therefore, will not be taken into account.

However, the evidence clearly dated within the relevant period and the evidence that can be related to it, analysed in this section, is sufficient to conclude that use was made within the relevant period.

Extent of use

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 invoices and, connected to them, price lists and brochure, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. The 13 invoices dated within the relevant periods demonstrate sales of invoiced amounts, which are not in any case insignificant, and invoiced a product referred to in the price lists and at least in one of the brochures as (‘Connex’) ‘Vitals Signs Monitor’. The submitted invoices also encompass a period of more than two and half years and they refer to the territories of several Member States. It is therefore concluded, contrary to the applicant’s arguments, that the separate pieces of evidence are connected to one another and provide sufficient indications of the extent of use of the opponent’s mark.

Nature of use

Use as a trade mark

Nature of use requires, inter alia, that the trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.

The applicant argues that there is no proof that the trade mark was used because the invoices bear only the product code and there is no evidence that the price lists were provided to any consumers in the EU. The applicant argues that the earlier sign is not used for the registered goods. It refers to case-law in support of its arguments.

The quoted by the applicant case-law is not applicable at the case at issue as in the cases quoted by the applicant there was no reference to the mark in question or no indication for the sales of the goods, which is not the case for the mark at issue. The applicant has not taken into account the evidence in their connection with one another. Thus, it has not assessed them in their correlation, which was already analysed above.

The materials submitted, when assessed as a whole, show that the earlier mark appears on the price lists and the said brochure in relation to goods, which are further marketed. This marketing is shown on the submitted invoices which are linked to the brochure and the price lists with the given product code. Therefore, a link can be made between the sign used on the brochure and the price lists and the products themselves.

The Opposition Division considers, therefore, that the evidence shows use of the earlier sign as a trade mark.

Use of the mark as registered

The evidence shows that the mark has been used as registered.

Use in relation to the registered goods

A note needs to be taken on the nature of the goods for which the earlier mark is registered. It is noted that the product is Computer software system […], however the term ‘comprising’, followed by a description of what that system contains refers to ‘software and monitors and detectors’. Therefore, it is apparent that the product is a system (device) that consists not only of software but also of hardware that monitors and detects ‘patient conditions’.

It is shown on the submitted evidence that the marketed product (Connex Vital Signs Monitor) combines not only monitor, but it is a device that is used for detecting patients information that is also used for wireless communication. It is apparent from the submitted evidence that the product is a device (system) that is interactive as there is a two-way flow of information between a computer and a computer-user. It responds to a user’s input, which inevitably requires software to coordinate the operations. It is, therefore, concluded that the evidence shows the use of the earlier mark for a product that comprises a system of software, monitor and detector for patient information and the applicant´s claim (as referred to above) has to be set aside.

In the light of the above and in particular the explanation and the description of the opponent’s product in the brochure and price lists, the Opposition Division considers that the opponent has proven the use of the earlier sign for the registered goods, namely:

Class 9: Computer software system comprising computer software and monitors and detectors of patient conditions for capturing and documenting patient vitals in electronic files.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

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 9: Computer software system comprising computer software and monitors and detectors of patient conditions for capturing and documenting patient vitals in electronic files.

The contested goods are the following:

Class 9: Computer software for receiving, processing, transmitting and displaying patient medical data.

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 opponent’s goods, as elaborated above, are a system that comprises of software, monitors and detectors meant for monitoring and detecting patients’ conditions. The contested goods are computer software that is also meant for managing and transmitting medical data concerning patients’ conditions. Therefore, it is very likely that the goods in comparison coincide in producer, end user and distribution channels and that complementarity exists between them, as the contested goods can be integral part of the opponent’s goods. Therefore, the goods are considered to be at least similar.

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 at least similar are specialised goods directed at business customers with specific professional knowledge or expertise, such as medical practitioners.

The public’s degree of attentiveness may vary from average to high (as the goods are related to processing medical data), depending on the price, sophistication, or terms and conditions of the goods purchased.

3. The signs

CONNEX	DEVICECONX
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The verbal elements of the signs under comparison are likely to be associated with some meanings in certain territories, for example in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

Both signs are word marks, the earlier one consists of the sole element ‘CONNEX’ and the contested one of the sole element ‘DEVICECONX’.

As far as the earlier mark is concerned, due to the existence of the word ‘connex’ (in the meaning of ‘connect’, information extracted from https://www.merriam-webster.com/dictionary/connex, even though it is an American term and not in usual use by the relevant public), but moreover due to the proximity of the element ‘CONNEX’ to the word ‘connect’ (‘join together so as to provide access and communication’, information extracted from https://en.oxforddictionaries.com/definition/connect), ‘it is likely that the relevant public would relate the element ‘CONNEX’ to the meaning of ‘connect’ specified above. Bearing in mind that the relevant goods are systems for monitoring patients’ conditions, the distinctiveness of the element is considered lower than average, as it refers to the goods being a link between the patient and the doctor.

The element ‘DEVICECONX’ does not exist as a word in English. However, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T 146/06, Aturion, EU:T:2008:33, § 58). Therefore, it is likely that significant part of the relevant public (taking into account the relevant goods being software for managing patient data) would perceive the contested sign as a juxtaposition of the component ‘Device’ in the meaning of the English word ‘device, namely ‘an object that has been invented for a particular purpose, for example for recording or measuring something’; and the component ‘CONX’. As far as the latter is concerned it is likely that it would be perceived by significant part of the relevant public the same way as the element ‘CONNEX’ of the earlier mark for the reasons specified above (and also due to the fact the ‘conx’ and ‘connex’ would be pronounced in highly similar way, as referred to further below). Taking into account that the relevant goods are software used by medical practitioners (which is a link between the patient’s condition and the doctor), it is considered that the conclusions reached above regarding the distinctiveness of the element ‘CONNEX’ of the earlier mark are equally applicable to the component ‘CONX’ of the contested sign.

As far as the component ‘DEVICE’ is concerned, the applicant claims that the component should not be considered as non-distinctive and refers to several trade marks registrations, containing the component ‘DEVICE’. However, when taken into account the relevant public for which the word ‘device’ exists as such in the meaning abovementioned and that the relevant goods are software that is meant to be used on certain device in order to serve its purpose, it is considered that the component ‘DEVICE’ of the contested sign directly refers to the purpose of the relevant goods (namely to be used on devices), and therefore it is non-distinctive. It follows that the component ‘CONX’ is the most distinctive component of the contested sign.

Therefore, conceptually, both sings will be perceived as a reference to the meaning of ‘connect’, and they only differ in the concept conveyed by the component ‘Device’ of the contested sign. Reference is made to the conclusions reached above regarding the distinctiveness of the elements/components of the signs.

The signs are, therefore, considered to be conceptually highly similar.

Visually, the signs coincide in the sequence of letters ‘******CON**X’. The signs visually differ in the additional letter ‘N’ and the letter ‘E’ of the earlier mark and the component ‘DEVICE’ of the contested sign. Reference is made to the conclusions reached above regarding the distinctiveness of the elements/ components of the signs.

It is therefore considered that the signs visually similar at least to a low degree.

Aurally, it is likely that significant part of the relevant public (due to the combination of the letters and their sounds) would pronounce the sole element ‘CONNEX’ in the earlier mark and the component ‘CONX’ in the contested sign in a highly similar way. The signs differ in the sound of the component ‘DEVICE’ of the contested sign, which has no counterpart in the earlier mark. Reference is made to the conclusions reached above regarding the distinctiveness of the elements/ components of the signs.

The signs are, therefore, considered to be aurally similar at least to an average degree.

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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as lower than average for the relevant goods in question.

5. Global assessment, other arguments and conclusion

The contested goods are at least similar to the opponent’s goods. The degree of attention may vary from average to high when choosing the relevant goods.

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

The signs are visually similar to at least a low degree, aurally similar to at least an average degree and conceptually highly similar, due to the commonalities mentioned above.

The distinctiveness of the earlier mark is lower than average. Although the distinctive character of the earlier mark and the coinciding elements must be taken into account when assessing the likelihood of confusion, it is only one factor involved in that assessment. Therefore, even in a case involving an earlier mark or a coinciding element of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (13/12/2007, T‑134/06, Pagesjaunes.com, EU:T:2007:387).

Moreover, the differing component ‘DEVICE’ of the contested sign would be perceived as a clear reference to the purpose of the relevant goods. Furthermore, account has to be taken on the market reality concerning the goods found to be at least similar. These are devices (systems) on one side and software, on the other side, both meant for monitoring patients conditions. It is highly likely nowadays on the market that the company that produces the device which only works with specific software would also produce software (including versions and updates) that is used for this specific systems (especially when profiled for medical patient care). Therefore, due to the coincidences between the signs and the additional component ‘Device’ of the contested sign, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49), such as the software (updates and versions thereof for increasing functionality) meant for the devices (systems) that the opponent is marketing.

Taking into account the above, is concluded that significant part of the relevant English-speaking public may believe that the goods found to be at least similar come from the same undertaking or economically linked undertakings even when the degree of attention is high.

Considering all the above, there is a likelihood of confusion on the part of the English-speaking part of the public. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 5 435 078. It follows that the contested trade mark must be rejected for all the contested goods.

COSTS

According to Article 109(1) EUTMR, 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 Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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

Claudia ATTINÀ

Irina SOTIROVA

Michal KRUK

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.