OPPOSITION No B 2 485 350

Zakritoé akzionérnoé obtschestvo "Evalar", 23/6 rue Sozialistitcheskaya, 659332 Biïsk, Altaïskiy kraï, The Russian Federation (opponent), represented by Pricewaterhousecoopers Legal Aktiengesellschaft Rechtsanwaltsgesellschaft, Kapelle-Ufer 4, 10117 Berlin, Germany (professional representative)

a g a i n s t

Evalar GmbH, Emser Str. 10, 10719 Berlin, Germany (applicant), represented by Boehmert & Boehmert Anwaltspartnerschaft mbB - Patentanwälte Rechtsanwälte, Kurfürstendamm 185, 10707 Berlin, Germany (professional representative).

On 03/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 485 350 is partially upheld, namely for the following contested goods and services:

Class 5: Nutritional supplements; mineral food supplements; anti-oxidant food supplements; dietetic preparations adapted for medical use; pharmaceuticals and natural remedies; homeopathic pharmaceuticals; plant extracts for pharmaceutical use.

2. European Union trade mark application No 13 508 916 is rejected for all the above goods. It may proceed for the remaining services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 13 508 916 . The opposition is based on international trade mark registration No 837 315 ‘EVALAR’ designating, inter alia, Latvia. 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. However, for reasons of economy of proceedings the opposition Division will focus on the international registration No 837 315 designating Latvia.

In the present case, the contested trade mark was published on 04/12/2014. The opponent was therefore required to prove that the Latvian designation of the international registration on which the opposition is based was put to genuine use in Latvia from 04/12/2009 to 03/12/2014 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 3: Aromatics [essential oils], flavourings for beverages [essential oils], deodorants for personal use [perfumery], greases for cosmetic purposes, cosmetic pencils, cosmetic creams, hair lotions, lotions for cosmetic purposes, beauty masks, oils for perfumes and scents, oils for cosmetic purposes, oils for toilet purposes, essential oils, ethereal oils, essential oils of cedarwood, oils for cleaning purposes, medicated soap, antiperspirant soaps, bases for flower perfumes, lipstick, cosmetic bath preparations, leather bleaching preparations, cosmetic preparations for slimming purposes, nail care preparations, astringents for cosmetic purposes, sunscreens [cosmetic preparations for skin tanning], fragrant potpourris, depilatory wax, depilatories, depilatory preparations, cosmetic preparations for skin care, cosmetics, antiperspirants, shampoos, flower extracts [perfumery], ethereal essences.

Class 5: Alkaloids for medical purposes, aldehydes for pharmaceutical purposes, amino acids for medical purposes, antibiotics, acetates for pharmaceutical purposes, balms for medical purposes, dietetic substances adapted for medical use, bismuth sub-nitrate for pharmaceutical purposes, melissa water for pharmaceutical purposes, mineral water for medical purposes, edible plant fibres [non nutritive], guaiacol for pharmaceutical purposes, haematogen, gentian for pharmaceutical purposes, mustard for pharmaceutical purposes, deodorants, other than for personal use, digitalin, mineral food supplements, food supplements for medical use, yeast for pharmaceutical purposes, gelatine for medical purposes, cod liver oil, iodine for pharmaceutical purposes, iodides for pharmaceutical purposes, cream of tartar for pharmaceutical purposes, tartar for pharmaceutical purposes, capsules for medicines, capsules for pharmaceutical purposes, wart pencils, acids for pharmaceutical purposes, collodion for pharmaceutical purposes, medicated confectionery, barks for pharmaceutical purposes, medicinal roots, starch for dietetic or pharmaceutical purposes, creosote for pharmaceutical purposes, liquorice for pharmaceutical purposes, medicines for alleviating constipation, lotions for pharmaceutical purposes, lupulin for pharmaceutical purposes, magnesia for pharmaceutical purposes, liniments, ointments for pharmaceutical purposes, medicinal oils, drugs for medical purposes, medicines for human purposes, menthol, medicinal drinks, almond oil for pharmaceutical purposes, milk ferments for pharmaceutical purposes, flour for pharmaceutical purposes, mint for pharmaceutical purposes, dietetic beverages adapted for medical purposes, dietetic beverages adapted for medical purposes, narcotics, medicinal infusions, eucalyptol for pharmaceutical purposes, tinctures for medical purposes, decoctions for pharmaceutical purposes, stick liquorice for pharmaceutical purposes, pectin for pharmaceutical purposes, pepsins for pharmaceutical purposes, peptones for pharmaceutical purposes, pills for pharmaceutical purposes, pomades for medical purposes, pyrethrum powder, albuminous preparations for medical purposes, biological preparations for medical purposes, bismuth preparations for pharmaceutical purposes, vitamin preparations, diagnostic products for medical purposes, therapeutic preparations for the bath, preparations for the treatment of burns, pharmaceutical preparations for treating dandruff, products for destroying vermin, pharmaceutical preparations for skin care, preparations of lime for pharmaceutical purposes, medicated bath preparations, medicinal preparations for stimulating hair growth, preparations of trace elements for human and animal use, pharmaceutical preparations, enzyme preparations for medical purposes, chemical-pharmaceutical preparations, chemical preparations for pharmaceutical purposes, chilblain preparations, eye-wash, albuminous foodstuffs for medical purposes, dietetic foods adapted for medical purposes, hydrated chloral for pharmaceutical purposes, chewing gum for medical purposes, tissues impregnated with pharmaceutical lotions, asthmatic tea, fumigating pastilles, linseed for pharmaceutical purposes, cigarettes [tobacco-free] for medical use, syrups for pharmaceutical purposes, turpentine for pharmaceutical purposes, soporifics, bicarbonate of soda for pharmaceutical purposes, salts for mineral water baths, bath salts for medical purposes, salts for medical purposes, malt for pharmaceutical purposes, medicinal alcohol, analgesics, adjuvants for medical purposes, styptic preparations, vermifuges, appetite reducers for medical purposes, medical preparations for slimming purposes, mouthwashes for medical purposes, depuratives, remedies for perspiration, laxatives, purgatives, evacuants, tonics (medicines), nervines, digestives for pharmaceutical purposes, pastilles for pharmaceutical purposes, thymol for pharmaceutical purposes, smoking herbs for medical purposes, medicinal herbs, tranquillizers, charcoal for pharmaceutical purposes, fennel for medical purposes, phenol for pharmaceutical purposes, enzymes for medical purposes, ferments for pharmaceutical purposes, formic aldehyde for pharmaceutical purposes, phosphates for pharmaceutical purposes, flowers of sulphur for pharmaceutical purposes, medicinal tea, herb teas, reducing tea for medical purposes, eucalyptus for pharmaceutical purposes, extracts of hops for pharmaceutical purposes, esters for pharmaceutical purposes, cellulose esters for pharmaceutical purposes.

However, for reasons of economy of proceedings again, the Opposition Division will focus the analysis of the genuine use of the earlier mark only in relation to food supplements for medical use in Class 5.

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 07/08/2017, 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 19/10/2017 to submit evidence of use of the earlier trade mark. This deadline was extended until 19/12/2017. On 19/12/2017, 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:

Exhibit 1: Report signed by the Executive Director of the opponent on the volume of supplies abroad marked with the earlier mark EVALAR in the period 2009-2014. The quantities are indicated in RUB, and separated by distributors in Latvia, Hungary, Lithuania and Estonia. It includes the contract number ruling the agreements with the European distributors.

Exhibit 2: Excerpt of German commercial register for the companies Evalar GmbH and Bioeva GmbH.

Exhibit 3: Copy of a contract, dated 08/11/2011, signed between the opponent and the applicant, for the registration and promotion of dietary supplements in Germany. The contract is written in Russian, and accompanied by the German and English translations.

Exhibit 5: Decision of the 5^th Civil Division of the Appeals Court Berlin-Schöneberg in Case No 5 U 141/16, dated 05/12/2017, where the genuine use of the earlier mark was considered to be proven in Germany.

Exhibit 6: Copy of a contract, dated 01/02/2012, between the opponent and an Estonian company for the sale of dietary supplements in Estonia. The document is in Russian and accompanied by a translation into English. It contains the sign which according to the opponent, is the earlier sign written in Cyrillic.

Exhibit 7: Invoices dated 2012-2014, in Russian. Part of the invoices shows the sale to Estonia of EVALAR products, being the sign EVALAR written in Cyrillic script.

Exhibit 8: Bills of goods delivery to Estonia, Lithuania and Latvia.

Exhibit 9: Copy of a contract, dated 11/11/2008, between the opponent and a Lithuanian company, for the period 2009-2011. It is written in Russian and accompanied by an English translation. It contains references to EVALAR in Cyrillic script.

Exhibit 10: An invoice dated 2009 and addressed at a Lithuanian distributor. It is written in Russian and accompanied by an English translation. It contains references to EVALAR in Cyrillic script.

Exhibits 11-12: Images of products with the sign .

Exhibit 13: Printout from www.safora.lt, dated 29/12/2009 and 15/01/2014.

Exhibit 14: Copy of a contract, dated 20/02/2012, between the opponent and a Latvian company, from 2012. It is written in Russian and accompanied by an English translation. It contains references to EVALAR in Cyrillic script.

Exhibit 15: Ten invoices dated 2013-2014 and addressed at the same Latvian company. All is written in Russian and accompanied by an English translation. In the original from, they contain references to EVALAR in Cyrillic script.

Exhibits 17-18: Pictures of various product packaging examples displaying the signs EVALAR and . They contain references to EU (Latvia) and part of the packaging is written in Latvian.

Exhibit 19: An advertising agreement, written in Latvian dated 2014, between the Latvian company (party to contract included in Exhibit 14) and an advertising company. It includes a picture of a product bearing the figurative sign .

Exhibit 20: Printout from www.web.archive.org in German, with results from EVALAR products, dated November 2011.

Exhibit 21: Examples of advertising of EVALAR products, in German.

Exhibit 22: Printout from www.amazon.de with EVALAR products and prices, dated 2013. It contains brief information of the products, all in German.

Exhibit 23: Example of a packaging design of a product branded EVALAR and the composition information, in German.

Exhibit 24: Invoice, dated 28/12/2011 in German and Russian and accompanied by an English translation. It was issued by the opponent and addressed to the applicant (former name of the company). It contains references to EVALAR products.

Exhibit 25: Customs declarations and receipt, in German. It shows that the opponent has exported goods to Germany in January 2012.

Some of the documents, such as those listed in Exhibits 14, 15 and 19, are dated within the relevant period. Moreover, Exhibits 14, 15, 17, 18 and 19 relate to the relevant territory. This can be inferred, for instance, from the addresses on the invoices and the language of the descriptions displayed in the packaging examples and in the advertising contract included in Exhibits 17 and 19. Consequently, the evidence submitted suffices to establish that the sign was present in the market in the relevant time and territory.

As regards the extent of use, it is noted 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.

When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C 40/01, Minimax, EU:C:2003:145, § 38).

Consequently, whether or not use of the mark was intended to create or maintain an outlet for the relevant goods in the relevant territory must be assessed.

The invoices sent by the opponent to a Latvian company relate to continuous periods within the relevant period and prove the duration and frequency of use of the mark throughout those periods. The amounts shown in the invoices refer to several thousand euros in relation to various food supplements per invoice and provide sufficient information concerning the commercial volume of use. Moreover, the invoices, which are, furthermore, non-consecutive, have been submitted merely as examples of sales and do not represent the total sales of goods under the earlier mark during the relevant period. It is clear from the evidence that the opponent or its distributor provided goods bearing the earlier mark in the relevant market. Therefore, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of use of the earlier mark.

According to Article 18(1), second subparagraph, point (a), EUTMR, the following will also constitute use within the meaning of paragraph 1: use of the European Union trade mark in a form differing in elements that do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor. When examining the use of an earlier registration for the purposes of Article 47(2) and (3) EUTMR, Article 18 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

In the present case, the examples of packaging included in Exhibits 17 and 18 show use of the sign as registered.

Moreover, the examples of packaging also show the use of the figurative sign . This use does not alter the distinctive character of the mark in the form in which it was registered because the figurative elements added in the form of a green label and a white short line are of merely decorative nature. Therefore, in view of the above, the Opposition Division considers that the evidence does show use of the sign as registered within the meaning of Article 18(1), second subparagraph, point (a), EUTMR.

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

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong.

However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

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

(14/07/2005, T-126/03, Aladin, EU:T:2005:288, § 45-46.).

The earlier mark is registered for, inter alia, food supplements for medical use. This category is sufficiently broad that several sub-categories can be identified within it. The evidence, in particular the invoices included in Exhibit 15 and examples of packaging included in Exhibits 17 and 18 show that the earlier mark has been used for, inter alia, pineapple extract, artichoke extract, holy thistle extract, bilberry with lutein, calcium d3, green tea extract, selenium, etc. covering a broad spectrum of food supplements for medical use. As the opponent is not required to prove all the conceivable variations of the category of goods for which the earlier mark is registered and as the goods for which use has been proved do not constitute a coherent subcategory within the broad category in the specification to which they belong, the Opposition Division considers that the evidence shows genuine use of the trade mark in relation to food supplements for medical use in Class 5.

The Opposition Division concludes that the evidence furnished by the opponent, taken as a whole, is sufficient to prove that the earlier trade mark was genuinely used in the relevant territory during the relevant period of time at least in relation to food supplements for medical use in Class 5.

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.

a) The goods and services

The goods on which the opposition is based and in relation to which genuine use of the earlier mark has been analysed and proven are the following:

Class 5: Food supplements for medical use.

The contested goods and services are the following:

Class 5: Nutritional supplements; mineral food supplements; anti-oxidant food supplements; dietetic preparations adapted for medical use; pharmaceuticals and natural remedies; homeopathic pharmaceuticals; plant extracts for pharmaceutical use.

Class 35: Business management organisation; business management.

Class 42: Pharmaceutical drug development services; pharmaceutical research and development.

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.

Contested goods in Class 5

The contested nutritional supplements; mineral food supplements; anti-oxidant food supplements; dietetic preparations adapted for medical use; plant extracts for pharmaceutical use are identical to the opponent’s food supplements adapted for medical use because either they are synonyms, or the contested goods are included in the opponent’s broader category.

The opponent’s food supplements adapted for medical use are substances prepared for special dietary requirements, with the purpose of treating or preventing disease. Bearing this in mind, their purpose is similar to that of the contested pharmaceuticals and natural remedies; homeopathic pharmaceuticals (substances used to treat disease) insofar as they are used to improve a patient’s medical condition. The relevant public coincides and the goods generally have the same distribution channels. Therefore, these goods are considered similar.

Contested services in Class 35

The contested business management organisation; business management are dissimilar to the opponent’s goods because they have no points of connection. They have a different nature and purpose. They do not share channels of distribution and targeted public. They are neither complementary or in competition with each other.

Contested services in Class 42

The contested pharmaceutical drug development services; pharmaceutical research and development are dissimilar to the opponent’s goods. Even though a certain link cannot be denied, due to the common final goal of treating diseases, they have a different nature as goods and services, target a different public and have a different usual origin. Pharmaceutical companies are heavily involved in research and development activities, however they usually do not provide such services to third parties.

b) Relevant public — degree of attention

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

In the present case, the goods found to be identical and similar are partially directed at the public at large and partially at business customers with specific professional knowledge or expertise in the health field.

It is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, the relevant public’s degree of attention is relatively high (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health.This also applies in relation with food supplements and dietetic substances for medical use in Class 5 (23/01/2014, T‑221/12, Sun Fresh, EU:T:2014:25, § 64 and 10/02/2015, T-368/13, ANGIPAX, EU:T:2015:81, § 46).

c) The signs

EVALAR
Earlier trade mark	Contested sign

The relevant territory is Latvia.

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).

Both marks consist of the word ‘EVALAR’ which has no meaning, and therefore, it is distinctive.

The contested sign includes a figurative element in form of a white line below the letters ‘ava’, and an irregular green label, which could be perceived, as the opponent claimed, as a green leaf. Furthermore, it includes the registered trade mark symbol, ®. This is an informative indication that the sign is purportedly registered and is not part of the trade mark as such. Consequently, this will not be taken into consideration for the purposes of comparison.

The figurative elements of the contested sign are rather of a purely decorative nature, and thus, less distinctive than the word element EVALAR. In the case that the green label is interpreted as a green leaf, it will be perceived as alluding to the natural components of the goods. Also in this case, it has a low degree of distinctiveness. In any case, due to its irregular form, it is likely that the majority of the public will not associate it with a green leaf but rather with a label, or an invented form.

Moreover, when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

Visually, the signs coincide in ‘EVALAR’ and only differ in the figurative elements of the contested sign which are less distinctive than the word element. Therefore, the signs are visually highly similar.

The signs are aurally identical.

Conceptually, neither of the signs has a meaning for the public in the relevant territory at least for the majority of the public. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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

d) Distinctiveness of the earlier mark

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

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

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

e) Global assessment, other arguments and conclusion

The contested goods are partially identical and partially similar to the opponent’s goods in relation to which the genuine use of the earlier mark has been analysed and proven. As seen above, the contested services are dissimilar.

The signs are visually similar to a high degree and aurally identical as they coincide in the only word element which composes the signs. Considering all the above, there is a likelihood of confusion on the part of the Latvian speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s international trade mark registration No 837 315 designating Latvia.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical and similar to those of the earlier trade mark.

The rest of the contested services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these services cannot be successful.

The opponent has also based its opposition on the designations in Austria, Benelux, Bulgaria, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Spain, Lithuania, Poland, Slovakia and United Kingdom of the international trade mark registration No 837 315.

The international trade mark registration No 837 315 invoked by the opponent covers the same goods in Classes 3 and 5 as listed above, which are clearly different to the services in Classes 35 and 42 applied for in the contested trade mark. They do not have any points of similarity for the same reasons applied above when comparing the contested services with food supplements for medical use in Class 5. Therefore, the outcome cannot be different with respect to services for which the opposition has already been rejected; no likelihood of confusion exists with respect to those services.

Given that the opposition is not well founded under Article 8(1) EUTMR in relation to the contested services in Classes 35 and 42, it is unnecessary to examine the evidence of use filed by the opponent both in relation to the other goods protected by the Latvian designation of the earlier international trade mark No 837 315 and in relation with the remaining designations.

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

Carmen SÁNCHEZ PALOMARES

Ana MUÑIZ RODRIGUEZ

Frédérique SULPICE

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.