OPPOSITION No B 2 568 312

Red Bull GmbH, Am Brunnen 1, 5330 Fuschl am See, Austria (opponent), represented by Hogan Lovells, Avenida Maisonnave 22, 03003 Alicante, Spain (professional representative)

a g a i n s t

Great Food, Bartoszewice 23, 63 930 Jutrosin, Poland (applicant)

On 28/07/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 568 312 is upheld for all the contested goods.

2. European Union trade mark application No 13 798 211 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 13 798 211 for the figurative sign  . The opposition is based on the following earlier rights:

• Austrian trade mark registration No 262 509 for the figurative mark , registered for goods in Class 32;

• Austrian trade mark registration No 277 454 for the figurative mark , registered for goods in Classes 29, 30, 31 and 32; and

• European Union trade mark registration No 698 720 for the word mark ‘Red Bull’, registered for goods and services in Classes 25, 32, 33, 41 and 42.

The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

REPUTATION – ARTICLE 8(5) EUTMR

For reasons of procedural economy, the Opposition Division will first examine the opposition in relation to earlier EUTM No 698 720 and Austrian trade mark registration No 277 454 for which the opponent claimed repute in the EU and Austria, respectively.

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. The signs

(1) Red Bull (2)
Earlier trade marks	Contested sign

The relevant territory is Austria (in relation to earlier mark 1) and the European Union (in relation to earlier mark 2).

The earlier mark (1) is a figurative mark consisting of a device element showing two red bulls in a fighting position against the background of a yellow circle. The earlier mark (2) is a word mark consisting of the verbal elements ‘Red Bull’. Both earlier marks have no elements that could be considered clearly more distinctive or dominant (visually eye-catching) than other elements.

The contested sign consists of a representation of a red bull covered in flames (with shades of yellow colour) placed on the background of a black square. The contested sign has no element that could be considered more dominant (visually eye-catching) than other elements. However, as regards the distinctiveness of the elements of the contested sign, it should be noted that the black square background is non-distinctive because it is of a purely decorative nature (a simple geometric shape).

Visually, the earlier sign (2) and the contested sign do not coincide in any aspect and are, consequently, not visually similar. As regards the earlier mark (1), it coincides with the contested sign in the fact that both depict bulls in red and yellow colour. While it is true that the earlier sign (1) contains a second bull and the position of the bulls is different, the colour schemes of the signs are the same. In addition, account is taken of the fact that the more distinctive element of the contested sign is a similar bull animal represented in a relatively aggressive position. This leads to the conclusion that the signs are visually similar to at least a low degree.

Purely figurative signs are not subject to a phonetic assessment. Therefore, as both signs are, or at least one of the signs is, purely figurative, it is not possible to compare them aurally.

Conceptually, as mentioned above, the earlier mark (1) depicts two red fighting bulls and the contested sign depicts a red, aggressively-looking bull in flames. Therefore, the earlier sign (1) and the contested sign will be associated with a similar semantic content, i.e. of angry/fighting red bulls due to the figurative elements.

The earlier sign (2) contains the English words ‘Red Bull’, which will be understood by the English-speaking consumers of the public. The word ‘bull’ alone in the earlier sign (2) will probably be understood in some other territories of the EU where it has fairly similar counterparts (such as BULLE in Austria and Germany, BUL in Benelux, BULIUS in Lithuania). However, a part of the public (such as the part of the public with no knowledge of English) will not associate the earlier sign (2) with any particular meaning.

Consequently, the earlier sign (2) and the contested sign have the same concept of a ‘red bull’ for the English-speaking part of the public. As regards the part of the public who would only understand the word ‘bull’ of the earlier mark (2), the signs would still have a very similar concept. Finally, as regards that part of the public who will not perceive any meaning in the earlier sign (2), the signs are not conceptually similar.

It follows from the above that the signs are similar to a certain degree. Likelihood of confusion is not necessary for the purposes of Article 8(5) EUTMR. Whereas the protection provided for under Article 8(1)(b) EUTMR is conditional upon a finding of a degree of similarity between the marks at issue such that there is a likelihood of confusion between them on the part of the relevant section of the public, the existence of such a likelihood is not necessary for the protection conferred by Article 8(5) EUTMR. Accordingly, the types of injury referred to in Article 8(5) EUTMR may result from a lesser degree of similarity between the marks in question, provided that it is sufficient for the relevant section of the public to make a connection between those marks that is to say, to establish a link between them (judgment of 23/10/2003, C-408/01 Adidas, EU:C:2003:582, § 27, 29, 31, and judgment of 27/11/2008, C-252/07, Intel, EU:C:2008:655, § 57, 58, 66).

Therefore, it remains necessary to examine the other conditions stipulated in Article 8(5) EUTMR, that is, whether the earlier marks have a reputation and if, in view of the link that the public would make between the marks, there is a risk that the use without due cause of the trade mark applied for would take unfair advantage of, or be

detrimental to, the distinctive character or the repute of the earlier trade marks.

2. Reputation of the earlier trade marks

According to the opponent, the earlier trade marks have a reputation in Austria and, respectively, in the European Union.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case the contested trade mark was filed on 06/03/2015. Therefore, the opponent was required to prove that the trade marks on which the opposition is based had acquired a reputation in Austria and the European Union prior to that date. The evidence must also show that the reputation was acquired for the goods for which the opponent has claimed reputation, namely:

Class 32: Energy drinks.

In order to determine the mark’s level of reputation, all the relevant facts of the case must be taken into consideration, including, in particular, the market share held by the trade marks, the intensity, geographical extent and duration of use, and the size of the investment made by the undertaking in promoting them.

On 15/01/2016 the opponent submitted evidence to support this claim. 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 consists, in particular, of the following documents:

• Affidavit dated 27/05/2015 of the Intellectual Property Counsel of the opponent’s company Red Bull GmbH explaining in thorough detail the history and global launch of the Red Bull brand and trade marks, as well as their use (including unit sales and market share), promotion in various markets (media expenses, marketing expenses and activities), market knowledge of the Red Bull marks (brand value, trial and awareness studies, market studies, social media, websites, well-known decisions), brand extensions (such as Red Bull Media House, Red Bull Mobile, Red Bull merchandising, Red Bull records, Red Bull magazine, etc.), events (international sports events, international cultural events and national events). The Affidavit mentions that the Red Bull trade marks are protected in more than 200 jurisdictions worldwide. The document shows considerable unit sales figures in the European Union between 2010 and 2014, significant market share in different EU countries in 2014 as well as significant media and marketing expenses between 2010 and 2014 (worldwide, in the EU, in Austria and in Germany). It is noted that the opponent’s Red Bull trade mark is ranked among the most valuable brands in Europe according to the European Brand Ranking Institute, such as ‘Eurobrand 2011’, ‘Eurobrand 2013’ and ‘Eurobrand 2014’ and ‘Eurobrand 2014 Austria’. In addition, Red Bull is present amongst the ‘World’s Most Valuable Brands’ according to Forbes in November 2103, Brand Finance (2015), BrandZ top 100 report by Millward Brown, etc. According to market search results of different institutes, the spontaneous and aided awareness of the brand in 2014 in different EU countries (including in Austria) is significant. Furthermore, it is stated that Red Bull owns and/or sponsors prominent international sports events and teams, organizes various famous international cultural events (artistic and music events) and national athletes and local events, such as Formula One, the Paris Dakar Rally, World Rally Championship, Moto GP, Soccer teams (FC Red Bull Salzburg, RED BULL New York, etc.), Freestyle Motocross, Ice Hockey, Red Bull Stratos, The America’s Cup, Red Bull Art of Can, Red Bull Music Academy, Red Bull Soundclash, etc.

The affidavit is supported by the following exhibits (1 to 12):

• Exhibit 1: Detailed list with the dates of first shipment of the Red Bull energy drink to countries all over the world, including the EU countries.

• Exhibits 2, 4 and 11: DVD containing: a number of Red Bull commercials in Germany and Austria and a printed overview (Exhibit 2); video-clips demonstrating Red Bull’s activities in the world of sports and culture (Compilation 2014) (Exhibit 4); and, a summary about the Red Bull Stratos event (a space driving project involving the Austrian skydiver Felix Baumgartner, Exhibit 11).

• Exhibit 3: Promotional materials dated within the period 2011-2013 and consisting of printed materials and photographs of marketing and advertising materials for the Red Bull trade marks concerning Germany and Austria.

• Exhibit 5: Eurobrand and BrandZ brand value rankings relating to 2014.

• Exhibit 6: Trial and awareness study overview 2014.

• Exhibit 7: Printouts from the opponent’s websites www.redbull.com, and in particular the German and Austrian websites www.redbull.com/de and www.redbull.com/at showing various items designated with the Red Bull trade marks, activities, events and news.

• Exhibit 8: Well-known decisions list containing brief details of numerous decisions of offices and jurisdictions all over the world where the well-known character and/or reputation of the trade marks Red Bull in different countries, including within the European Union, for energy drinks has been recognized.

• Exhibit 9: Red Bull Collection catalogue showing various clothing items.

• Exhibit 10: Excerpts from the opponent’s websites www.redbull.com related to participation/sponsorship of Red Bull in various international sports and cultural events.

• Exhibit 12: Detailed information about Red Bull’s national events (in Austria and Germany) and sponsorship activities within 1990 – 2014. The data includes the event name, duration, name of person/s, (sports) discipline, location, etc.

• Copies of several EUIPO Opposition Division decisions.

• 2007 Karmasin market study referring to Austria.

• Copies of two decisions of the EUIPO Boards of Appeal and a copy of a decision by the EUIPO Cancellation Division.

On the basis of the above the Opposition Division concludes that the earlier trade marks have a reputation in Austria, and respectively the European Union for all the goods for which the opponent has claimed reputation, namely energy drinks in class 32.

It is clear from the evidence (such as the affidavit, market surveys, sales figures, information regarding market shares and promotional activities, press material and various judgments and decisions), that the earlier trade marks have been subject to long-standing and intensive use and are generally known in the relevant market, where they enjoy a consolidated position among the leading brands, as has been attested by diverse independent sources. The sales figures, marketing expenditure and market share shown by the evidence and the various references to their success all unequivocally show that the marks enjoy a high degree of recognition among the relevant public.

3. The ‘link’ between the signs

As seen above, the earlier marks are 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.

The earlier trade marks are inherently distinctive to at least an average degree. Both earlier signs refer to the idea of ‘a red bull/s’, which is rather unique in the context of beverages and, more specifically, energy drinks. In addition, the marks enjoy a high degree of recognition in the relevant territory as a result of extensive sales, marketing and exposure of that trade marks. It follows that the opponent’s highly reputed trade marks, on top of being inherently distinctive and unique, also have a high degree of acquired distinctiveness for ‘energy drinks’.

The contested goods in Classes 29, 30, 32 and 31 (listed below) are all related to, and some identical to (with regard to ‘energy drinks’), the goods in relation to which the earlier marks are reputed. Part of the contested goods are beverages and are closely connected to ‘energy drinks’, as they have the same nature, can be used for the same purpose (quenching thirst) and can all coincide in producers and distribution channels. As regards the remaining contested goods they are various foodstuffs and related products. These goods are also closely connected to the opponent’s ‘energy drinks’ in the sense that both are generally distributed through the same channels of trade, belong to the same or neighbouring market sectors and can coincide in relevant public.

Although no direct connection can be established between some of the goods such as seeds; natural plants and flowers, since they are dissimilar, an association with the earlier marks remains possible, taking into account the degree of similarity between the signs and the strong reputation acquired by the earlier marks.

Therefore, in light of all the relevant factors, in particular the strong reputation, uniqueness and enhanced distinctive character of the earlier marks, the similarly between the marks and the fact that the contested sign borrows the main idea of the opponent’s brand (that of a ‘red bull’) and the proximity of the goods, the public would naturally be led to immediately establish a link between the applicant’s mark and the reputed earlier marks.

Therefore, the Opposition Division concludes that when encountering the contested mark the relevant consumers will be likely to associate it with the earlier signs, 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).

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’ (06/06/2012, 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.

The opponent claims that use of the contested trade mark would take unfair advantage of the distinctive character or repute of the earlier trade mark and be detrimental to the distinctive character and repute of the earlier trade mark.

Before examining the opponent’s claim, it is appropriate to recall that the opposition is directed against the following goods:

Class 29: Meat; Fish; Poultry; Game; Meat extracts; Preserved, frozen, dried and cooked fruits and vegetables; Jellies; Jams; Compotes; Eggs, milk; Milk products; Edible oils and fats; Prepared meat dishes; Prepared vegetable products; Potato dumplings; Frozen prepared meals consisting principally of vegetables; Frozen fruits; Frozen vegetables; Mixed vegetables; Processed meat products; Poultry extracts, meat extracts; Prepared meat; Soups.

Class 30: Coffee; Tea; Cocoa; Sugar; Rice; Tapioca; Sago; Artificial coffee; Flour and preparations made from cereals; Bread; Pastry and confectionery; Edible ices; Honey; Treacle; Yeast; Baking powder; Salt; Mustard; Vinegar; Sauces (condiments); Spices; Ice, Chilled desserts; Dumplings; Meat gravies; Cooking sauces; Fresh pasties; Frozen pastry stuffed with vegetables; Frozen pastry stuffed with meat; Vareniki [stuffed dumplings]; Pelmeni [dumplings stuffed with meat]; Flour mixtures for use in baking; Flour; Farinaceous food pastes for human consumption; Snack food products made from potato flour.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; Live animals; Fresh fruits and vegetables; Seeds; Natural plants and flowers; Foodstuffs for animals; Malt.

Class 32: Mineral and aerated waters and other non-alcoholic beverages; Fruit beverages and fruit juices; Syrups and other preparations for making beverages; Cocktails, non-alcoholic; Iced fruit beverages; Lemonades; Non-alcoholic beverages; Fruit flavored soft drinks; Apple juice beverages; Vegetable juices [beverages].

As seen above, the earlier trade mark was found to have a reputation for:

Class 32: Energy drinks.

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 (06/06/2012, T‑60/10, Royal Shakespeare, EU:T:2012:348, § 48, and 22/03/2007, T‑215/03, Vips, EU:T:2007:93, § 40).

The opponent bases its claim on, inter alia, the following:

 It is clear from the evidence which refers to impressive market shares, intensive and geographically-extensive use of the earlier trade marks and the enormous investment undertaken by the opponent in promoting its marks and products that the opponent’s earlier marks are highly reputed in Austria and throughout the European Community. The extent of the opponent’s commitment to the promotion of its reputation under the various bull device marks can also easily be discerned.

 By using the application, which represents a ‘red bull’, in relation to the contested goods, the applicant would clearly be in a position to have some of the qualities of the opponent’s goods attributed to its products. That attribution would be manifestly unfair.

• It has already been established that the opponent’s earlier Red Bull and bull device mark, as well as the colour red in this context, benefit from an enormous reputation and prestige in the market. The combination of a bull device with the colour red is a highly unusual association, which has been created by the opponent and extensively used on the opponent’s products and in advertising campaigns.

• The use of the ‘red bull’ concept in the mark applied for will certainly result in an image transfer to the application. The marketing of products sold under the mark applied for would be made considerably easier due to the immediate link that the average consumer would make to the opponent’s high quality products.

• There is no reasonable justification for the applicant to use the ‘red bull’ concept, other than to free ride on the enormous reputation that the opponent enjoys in the sector of beverages and the investment undertaken by the opponent in its advertising campaigns to promote its earlier marks and the underlying concept of ‘red bull’.

• It has also been established that the signs are similar. As a result, by not having to undertake its own marketing efforts, the applicant would clearly exploit the reputation and prestige of the opponent’s earlier marks.

• There is a clear connection between energy drinks (for which the earlier marks are reputed), the other beverages in classes 32 and 30 (on account that energy drinks are extremely hard to define) and the various foodstuffs and related products in classes 29, 30 and 31 (on account of their similar nature, same distribution channels and complementarity to beverages).

• This close proximity of the products would thus allow for the qualities of the opponent’s goods to be attributed to those of the applicant. Therefore, since the goods at issue either directly overlap or should be considered as falling to neighbouring markets, the consumers could well believe that the applicant’s products comprise a ‘brand extension’ of the opponent’s well-known products.

• When Austrian consumers – and likewise those in other countries – see a bull device, or a bull device in connection with the colour red, in relation to beverages they think of the opponent. This precious association will suffer irreparable damage if other trade marks conveying the same idea are now permitted to exist in the EU, for identical or highly similar goods. The applicant ought not to be entitled to trade in the EU under the contested mark. To allow it to do so would take advantage of the hard-earned reputation of the opponent in the EU, and in particular in Austria, which has been painstakingly built up over the last decades.

• …The General Court effectively recognised that where a trade mark enjoys a ‘reputation of exceptional strength’ that would more readily enable the positive qualities of that mark to be transferred to the mark applied for, and, as a result, strengthen the power of attraction of the mark applied for. That is precisely the case here. The evidence submitted manifestly demonstrates that the earlier Red Bull and bull device marks are not just reputed, but enjoy a reputation of exceptional strength. They should therefore be afforded such protection.

• In the present case, the image of quality and ‘energetic properties’ of the opponent's marks would equally be easily transferred to the mark applied for, as the attractive power of the opponent’s marks goes beyond the sector of energy drinks and certainly extends to the beverage sector in general, as well as to foodstuffs and the related products covered by the mark applied for. An image transfer is therefore all the more likely, in particular as the applicant has copied the famous ‘red bull’ concept.

• These circumstances undoubtedly constitute prima facie evidence that the applicant’s use of the application for energy drinks, beverages, foodstuffs and related products, would take unfair advantage of the opponent’s earlier Red Bull and bull device marks and would free-ride on the coattails of the opponent’s famous marks, which is precisely the behaviour prohibited by Article 8(5) EUTMR.

According to the Court of Justice of the European Union

… as regards injury consisting of unfair advantage taken of the distinctive character or the repute of the earlier mark, insofar as what is prohibited is the drawing of benefit from that mark by the proprietor of the later mark, the existence of such injury must be assessed by reference to the average consumers of the goods or services for which the later mark is registered, who are reasonably well informed and reasonably observant and circumspect.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 36.)

On the basis of the above, the Opposition Division concludes that the contested trade mark is likely to take unfair advantage of the distinctive character or the repute of the earlier trade marks.

In the Opposition Division’s view, there is a probability of free-riding in the circumstances of this case. The opponent has put forward a coherent line of argument, showing how unfair advantage would occur, and that it is indeed likely in the ordinary course of events. The long-established use and recognition of the earlier marks makes it probable that consumers’ economical behaviour would be swayed in favour of the applicant’s goods solely because they are commercialised under the contested sign. That would result in a transfer of the goodwill of the earlier reputed marks in favour of the applicant’s trade mark. Consequently, as held by the opponent, the economic advantage would consist of exploiting the effort expended by the opponent in order to establish the reputation and the image of its earlier trade mark, without paying any compensation in exchange.

In conclusion, the Opposition Division considers that because of the existing link between the signs and because of the reputation of the earlier marks, the use of the contested sign for the goods mentioned above constitutes unfair advantage to the applicant.

Other types of injury

The opponent also argues that use of the contested trade mark would be detrimental to the distinctive character and repute of the earlier trade mark.

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 marks. It follows that there is no need to examine whether other types also apply.

5. Conclusion

Considering all the above, the opposition is well founded under Article 8(5) EUTMR. Therefore, the contested trade mark must be rejected for all the contested goods.

Given that the opposition is entirely successful under Article 8(5) EUTMR it is not necessary to examine the remaining grounds and earlier rights on which the opposition was based.

COSTS

According to Article 85(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 Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, 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

Sandra IBAÑEZ

Liliya YORDANOVA

Gailé SAKALAITE-ORLOVSKIENE

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.