CANCELLATION No 15 304 C (INVALIDITY)

Pro Servis Invest, s.r.o., Za Pazdernou 1498, 39701 Písek, Budějovické Předměstí, Czech Republic (applicant), represented by David Műller, Filipova 2016/6, 14800 Praha 4, Czech Republic (professional representative)

a g a i n s t

Popup House Société par actions simplififée, Domaine du Petit Arbois, Avenue Louis Philibert, 13100 Aix-En-Provence, France (EUTM proprietor), represented by T Mark Conseils, 9 avenue Percier, 75008 Paris, France (professional representative).

On 21/07/2021, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is partially upheld.

2. European Union trade mark registration No 14 103 212 is declared invalid for some of the contested goods and services, namely:

Class 19: Reinforcing materials not of metal for building; asphalt, pitch and bitumen; awnings [buildings] not of metal and not of textile; guard rails not of metal; shingles not of metal; prefabricated buildings, not of metal; transportable buildings of timber; concrete; wood blocks; chipboard; lumber; wood paneling; bricks; door and window frames of wood; duckboards not of metal; frames not of metal for building; lime; chimneys not of metal; trestles not of metal for use in construction; wood rafters; cement; water-pipe valves, not of metal or plastic; partitions not of metal; fences, not of metal; shuttering, not of metal, for concrete; prefabricated architectural columns not of metal; water pipes not of metal; wooden pipes for building; cornices not of metal; angle irons, not of metal; roof coverings, not of metal; tiles not of metal for building; scaffolding, not of metal; concrete building elements; coatings [building materials]; staircases not of metal; doors and windows not of metal; felt for building; railings not of metal; roof gutters not of metal; wainscoting not of metal; modular homes not of metal; prefabricated houses not of metal; mantlepieces; marble; building materials, not of metal; palisading, not of metal; building panels not of metal; cladding of wood; parquet flooring; paving blocks, not of metal; gazebos not of metal; pergolas not of metal; structural and architectural members formed of pressed wood fibers; wood veneers; cove bases, not of metal; gates not of metal; beams, not of metal; rails not of metal; balcony railings not of metal; window sills not of metal; linings not of metal [building]; outdoor blinds not of metal and not of textile; shelter structures not of metal [other than tents]; roofing not of metal; roofing tiles not of metal; building glass; porches not of metal (for building); swimming pools not of metal; lighting slabs; furrings of wood; coatings (building materials).

Class 37: Construction; building consultancy; building consolidation; maintenance and renovation of buildings; construction, maintenance and repair of transportable and prefabricated buildings; construction information; providing of information relating to building construction, repair and installation; providing of consultancy relating to installation, maintenance and repair; building construction supervision.

3. The European Union trade mark remains registered for all the remaining services, namely:

Class 37: Installation of safety and security equipment; installation of heating, lighting, ventilation and air conditioning systems; installation of plumbing systems; thermal insulating for buildings; rental of construction machines and apparatus; rental of scaffolding, platforms, moulds and machines for construction; scaffolding, excavation and construction; cleaning of buildings [interior]; fitting of windows and doors; fitting of insulating materials in buildings, roofs and structures; carpentry services; demolition services; roofing services; painting and wallpapering; interior and exterior building plastering and painting; plumbing; electric appliance installation and repair; maintenance and restoration of furniture; restoration of works of art; fitting and installation of kitchens and bathrooms.

Class 42: Product design and development; design and creation of furniture, furnishing objects and articles; graphic arts designing; interior and exterior decoration; industrial design; styling (industrial design); architecture and architectural consultation; construction drafting; consultancy in the field of energy-saving; research and reports in scientific, technological and architectural fields, namely expert reports of engineers and architects; computer system design; technical project studies; information on decoration; testing of materials; development, design of software; updating and installation of software; mechanical research; urban planning.

4. Each party bears its own costs.

REASONS

On 26/07/2017, the applicant filed an application for a declaration of invalidity against some of the goods and services of European trade mark registration No 14 103 212 , namely against all the goods in Class 19 and all the services in Class 37.

The application is based on, inter alia, European Union trade mark registration No 9 303 314  .

The applicant invoked Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the goods and services are identical or similar to all the goods and services of the earlier marks. The signs are similar given the presence, in both, of the ‘POP’ element, which is at the beginning of the signs and dominates over the fairly simple graphics of the trade marks, being ‘up architecture’ of the contested mark descriptive or promotional of the goods and services.

The EUTM proprietor argues that it seems the marks on which the application for invalidity is based have not been put to genuine use; in relation to the goods it explains that the fact that the conflicting marks cover the same field of goods cannot suffice for a finding of similarity. As for the signs, it mentions that in the contested mark, the elements ‘POP’ and ‘UP’ must be assessed together as there is a dash between them, and these are the dominant elements of the mark. It adds that ‘POP’ is generic and that, although the verbal elements might be more relevant, the other elements cannot be completely disregarded, and on the whole, the signs are different: the contested mark consists of three verbal items and it also differs from the earlier marks in its colours and typescript.

In its reply, the applicant reiterates its arguments regarding the similarity of the signs and mentions that, even if the earlier marks have been revoked for some goods and services, the ones still covered by the earlier marks are identical or similar to the contested goods.

The EUTM proprietor did not file observations in reply even though it requested an extension of its deadline to do so and the extension was granted by the Office.

PROOF OF USE

In its observations the EUTM proprietor states: ‘It appears that ETMR on which the Invalidity Action is based have not been put to genuine use during a continuous period of 5 years so that the validity of these Registrations is very doubtful’.

In the first place it must be noted that, if this statement was to be accepted as a request for the proof of the use of the marks on which the application is based, according to Office practice a request for proof of use must be explicit, unambiguous and unconditional. Furthermore, the EUTM proprietor has not submitted the request for proof of use by way of a separate document as required by Article 19(2) EUTMDR. Therefore, the statement would at any rate be inadmissible as a request or proof of use pursuant to Article 19(2) EUTMDR.

LIKELIHOOD OF CONFUSION — ARTICLE 60(1)(a) EUTMR IN CONJUNCTION WITH 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.

The application is based on more than one earlier trade mark. The Cancellation Division finds it appropriate to first examine the application in relation to the applicant’s European Union trade mark registration No 9 303 314.

a) The goods and services

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.

After revocation proceedings No 18 144 C of 25/06/2019, which have become final, the earlier mark remains registered for the following goods, on which the application is based:

Class 19: Wooden houses, constructions - houses, also prefabricated, including passive and low-energy, components for such constructions, e.g. non-metallic building materials, including building wood, building glass, non-metallic roofing, insulation materials belonging to class 19.

The contested goods and services are the following:

Class 19: Reinforcing materials, not of metal, for building; asphalt, pitch and bitumen; awnings (constructions), not of metal or of textile; fences, not of metal; shingles, not of metal; prefabricated buildings, not of metal; transportable buildings of timber; concrete; wood blocks; wood agglomerate; wood for building; wood panelling; bricks; window and door frames of wood; floorboards; frames, not of metal, for building; lime; chimneys, not of metal; building racks, not of metal; wood rafters; cement; water-pipe valves, not of metal or plastic; sidewalls (non-metallic -); fences, not of metal; shuttering, not of metal, for concrete; prefabricated architectural columns, not of metal; water-pipes, not of metal; ducts of wood for use in building; non-metal cornices; angle irons, not of metal; non-metal roof coverings; slabs, not of metal, for building; scaffolding; concrete building elements; coatings [building materials]; staircases, not of metal; windows and doors, not of metal; felt for building; railings, not of metal; gutters (roof -), not of metal; non-metal wainscotting; modular houses, not of metal; prefabricated non-metal buildings; mantelpieces; marble; building materials (non-metallic); palisading, not of metal; building panels, not of metal; wood siding; parquet flooring; paving blocks made of non-metallic materials; garden pavilions, not of metal; pergolas (non-metallic -); framework and architecture components consisting of agglomerate wood fibres; veneers; skirting boards (non-metallic -); non-metal gates; non-metal beams; non-metal rails; balcony guard rails, not of metal; non-metal window sills; surfacings, not of metal, for building; outdoor blinds, not of metal and not of textile; shelter structures, not of metal (other than tents); non-metal roofing; non-metal roofing tiles; building glass; awnings, not of metal, for building; swimming pools (structures, not of metal); luminous paving blocks; furrings of wood; coatings (building materials).

Class 37: Construction; building consultancy; building consolidation; maintenance and renovation of buildings; construction, maintenance and repair of transportable and prefabricated buildings; construction information; installation of safety and security equipment; installation of heating, lighting, ventilation and air conditioning systems; installation of plumbing systems; thermal insulating for buildings; rental of construction machines and apparatus; rental of scaffolding, platforms, moulds and machines for construction; providing of information relating to building construction, repair and installation; scaffolding, excavation and construction; cleaning of buildings [interior]; fitting of windows and doors; fitting of insulating materials in buildings, roofs and structures; providing of consultancy relating to installation, maintenance and repair; carpentry services; demolition services; building construction supervision; roofing services; painting and wallpapering; interior and exterior building plastering and painting; plumbing; electric appliance installation and repair; maintenance and restoration of furniture; restoration of works of art; fitting and installation of kitchens and bathrooms.

In relation to the terms ‘including’ and ‘e.g.’ (for example), present in the applicant’s specification of goods, it must be clarified that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (on the use of ‘in particular’ see reference in 09/04/2003, T‑224/01, Nu-Tride, EU:T:2003:107).

Contested goods in Class 19

The contested goods in this class are either identical or similar to the goods protected by the earlier mark in the same class.

Some of the goods appear with the same or very similar wordings, for example the contested building materials, not of metal in relation to the applicant’s non-metallic building materials. Some of the other contested goods are part of one of the general categories non-metallic building materials, or insulation materials protected by the earlier mark and these goods are therefore identical. Some examples of this are: reinforcing materials, not of metal, for building; wood blocks; wood agglomerate; wood for building; wood panelling; bricks; window and door frames of wood; floorboards; frames, not of metal, for building; building racks, not of metal; wood rafters; sidewalls (non-metallic -); fences, not of metal; water-pipes, not of metal; ducts of wood for use in building; non-metal cornices; angle irons, not of metal; non-metal roof coverings; slabs, not of metal, for building; coatings [building materials]; windows and doors, not of metal; felt for building; railings, not of metal; gutters (roof -), not of metal; palisading, not of metal; building panels, not of metal; wood siding; parquet flooring; paving blocks made of non-metallic materials; skirting boards (non-metallic -); non-metal gates; non-metal beams; non-metal rails; balcony guard rails, not of metal; non-metal window sills; surfacings, not of metal, for building; non-metal roofing; non-metal roofing tiles; building glass; awnings, not of metal, for building; furrings of wood; coatings (building materials).

Some other goods, such as for example the contested transportable buildings of timber, are highly similar to wooden houses, constructions, prefabricated buildings, not of metal, given that they have the same commercial origin, they are distributed through the same channels and they are complementary.

Some other contested goods such as for example asphalt, pitch and bitumen are, at least, similar to a low degree to the applicant’s broad categories of non-metallic building materials and insulation materials given that the contested goods are used for flooring, roofing, for waterproof surfaces, and in this sense they are purchased by the same consumers with the same purpose, and they could be traded through the same channels.

Contested services in Class 37

Some of the services protected by the contested mark are construction services, services of maintenance and repair/reparation and providing of information and consultancy in relation to these services.

The contested construction; building consultancy; building consolidation; maintenance and renovation of buildings; construction, maintenance and repair of transportable and prefabricated buildings; construction information; providing of information relating to building construction, repair and installation; providing of consultancy relating to installation, maintenance and repair; building construction supervision are complementary to the applicant’s wooden houses, constructions - houses, also prefabricated, given that it is common on the market for undertakings selling the goods to provide the services of their actual construction, installation or maintenance, and other ancillary services such as information/consultation/management, as the technical know-how for this activity lies with the same company. Therefore, they are similar.

On the other hand, since by nature, goods and services are dissimilar, similarity between some goods and some services that are used in combination with each other can only be found similar in as much as they are complementary, that is to say, if there is a close connection between them, in the sense that one is indispensable (essential) or important (significant) for the use of the other in such a way that consumers may think that responsibility for the production of those goods or provision of those services lies with the same undertaking (11/05/2011, T-74/10, Flaco, EU:T:2011:207, § 40; 21/11/2012, T-558/11, Artis, EU:T:2012:615, § 25; 04/02/2013, T-504/11, Dignitude, EU:T:2013:57, § 44).

This is not the case in these proceedings in relation to all the services that are not mentioned above, given that the origin of the goods is different from that of the services, as the companies which provide the service usually buy the materials in Class 19 from a third party to then be able to provide the service. Consequently, the rest of the contested services installation of safety and security equipment; installation of heating, lighting, ventilation and air conditioning systems; installation of plumbing systems; thermal insulating for buildings; rental of construction machines and apparatus; rental of scaffolding, platforms, moulds and machines for construction; scaffolding, excavation and construction; cleaning of buildings [interior]; fitting of windows and doors; fitting of insulating materials in buildings, roofs and structures; carpentry services; demolition services; roofing services; painting and wallpapering; interior and exterior building plastering and painting; plumbing; electric appliance installation and repair; maintenance and restoration of furniture; restoration of works of art; fitting and installation of kitchens and bathrooms are dissimilar to the applicant’s goods.

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.

The EUTM proprietor contends that the relevant public is only the professional public with a high degree of attention. However, among the goods compared, there are some such as insulation materials, for example, which could also be purchased by the general public for some reparations in their households. Consequently, both publics, the general one and the one composed by professionals must be taken into account.

As for the level of attention, it will tend to be high as the goods and services are not everyday consumer goods that would be purchased regularly, but are goods and services that are in general technically quite complex and expensive.

c) The signs

Earlier trade mark	Contested registration

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

The EUTM proprietor maintains that the consumers will be able to differentiate between the signs given that the contested mark is linked to the proprietor’s mark ‘POP-UP HOUSE’, which is reputed, and explains that this mark has featured in several magazines and newspapers worldwide since 2015, and it was even part of a national event which took place in front of the Paris City Hall in May 2016.

In relation to this issue it must be clarified first, that the proprietor has not claimed that the contested mark itself is reputed. But even if this was the argument, it must be recalled that the right to an European Union trade mark begins on the date when it is filed and not before. Therefore, when considering whether or not the contested mark falls under any of the relative grounds for refusal, events or facts related to the contested mark which happened before its filing date are irrelevant because the applicant’s rights, insofar as they predate the contested mark, are prior to those of the EUTM proprietor.

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in proceedings for a declaration of invalidity against any 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 declare the contested trade mark invalid.

The common element ‘pop’ does not have a meaning in relation with the goods/services at issue for the non-English-speaking part of the public and, consequently, the Cancellation Division finds it appropriate to focus the comparison of the signs on the non-English-speaking part of the relevant public.

Contrary to what the applicant maintains, the term ‘pop’ in the contested mark is not the ‘dominant’ element, nor as the owner states, ‘pop-up’; the concept of dominance refers to elements that are visually-outstanding, and consequently, not being any of the elements of the marks more striking visually than others, none of the marks has any dominant elements.

As for the distinctiveness of the elements that compose the marks, it must be recalled that this assessment is based on the non-English-speaking public of the relevant territory, and they might not perceive semantic differences between ‘pop’ and ‘pop-up’ and they will therefore link both terms to a concept that most of them will know, namely the musical trend ‘pop’. In connection to the goods and services it will be distinctive; on the other hand, ‘architecture’ is identical or very similar to many of its counterparts in other languages such as French (identical), Spanish and Portuguese ‘arquitectura’, Italian ‘architettura’, Polish and Czech ‘architektura’, German ‘Architecktur’, to mention only some examples, so consumers will understand it readily. As the goods at issue are building materials and the services are those such as construction, repair, installation etc., the level of distinctiveness of this word is diminished.

Also, it must be recalled that 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; 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE, § 24; 13/12/2011, R 53/2011‑5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). Consequently, the figurative element in the earlier mark, the colours and the different typescripts of the marks, are secondary to the denominations.

The EUTM proprietor asserts that the denomination ‘pop’ cannot be separated from ‘up’; it is true that there is a dash between them, but the consumers will readily perceive ‘pop’ in the contested mark and will be able to link the marks visually through this distinctive element, all the more so because this is the element shown at the beginning of the contested mark, as the applicant argues, and it must be recalled that consumers generally tend to focus on the first element of a sign when being confronted with a trade mark, as the public reads from left to right. Taking into account that ‘up’ is located in the second place of the expression ‘pop-up’, that it is a very short element, that ‘architecture’ is weak and that the figurative elements are not particularly striking, the marks are visually similar to an average degree.

Aurally, given the weakness of ‘architecture’, the fact that both marks start by ‘pop’ and that the figurative elements are not pronounced, the marks are highly similar.

Conceptually, both parties make reference to the meaning in English of ‘pop’, ‘up’ and ‘pop-up’, and ‘architecture’. However, the only words that non-native English speakers will readily perceive are ‘pop’ and ‘architecture’, for the reasons given above. It is true, as the EUTM proprietor contends, and as it has been mentioned above, that ‘pop’ will mean for many consumers a kind of music, for example, but what matters here is that the non-native English speakers will not see a specific meaning in ‘pop-up’ that could differentiate it from ‘pop’. Consequently, for the relevant consumers the marks will be semantically linked by the term ‘pop’ with the meaning given above, and as the point of difference will be limited to the weak element ‘architecture’, the marks are conceptually similar to a high degree.

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

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

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

The EUTM proprietor mentions that ‘pop’ is a generic word, but gives no reasons in relation to why it could be descriptive for the goods and services at stake. Also, it says that the signs are quite short and therefore the differences will be readily noticed by consumers.

However, as seen above, the signs are linked through the word ‘pop’, which in the contested registration is a distinctive element placed at the beginning of the sign, and is only accompanied by a short element that appears in the second place (‘up’) and by a word that is non-distinctive for the goods and services. Also, the figurative elements are not particularly striking and will not serve to differentiate the marks. Consequently, the marks are visually similar to an average degree and aurally and conceptually highly similar. Therefore, in the presence of goods and services which are identical or similar (even if they might be only lowly similar), the consumers might confuse their origin and think that they originate from the same undertakings or companies with economic ties, even those consumers with a high degree of attention, as they still need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Considering all the above, the Cancellation Division finds that there is a likelihood of confusion on the part of the non-English-speaking part of the public and, therefore, the application is partly well founded on the basis of the applicant’s European Union trade mark registration No 9 303 314. 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 declare the contested trade mark invalid.

Pursuant to the above, the contested trade mark must be declared invalid for the goods and services found to be identical or similar to those of the earlier trade mark, including those goods found similar to a low degree because due to the interdependence principle, the low degree of similarity of the goods is offset by the similarity between the signs.

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 application based on this article and directed against these services cannot be successful.

The applicant has also based its cancellation application on the following earlier trade mark:

European Union trade mark registration No 10 167 633 .

This earlier right invoked by the applicant is less similar than the contested mark given the presence of the word ‘ARCHI’ and, moreover, it covers the same scope of the goods after the mark was revoked for some goods and services in proceedings C 18 143. Therefore, the outcome cannot be different for services for which the cancellation application has already been rejected; there is no likelihood of confusion for those services.

In its observations, the EUTM proprietor cites some decisions in cases that it considers analogous to the present proceedings, such as the decision of 07/12/2017 in proceedings B 2 796 509 vs. . . In those proceedings the Opposition Division considered that there were enough differences between the signs on account, among other issues, of the first term in the contested mark not being identical to the earlier mark, which is not the case here.

In the decision of 25/03/2002 in proceedings No B 200 230 the Opposition Division rejected the opposition on account of the term ‘TOP’ being weak for the goods and services.

The decision of 20/07/2015 in proceedings B 2 371 428 ‘POST’ vs. ‘POST ON DEMAND’ was not based on Article 8(1)(b) EUTMR, but on Article 8(5) EUTMR, and the Opposition Division considered that ‘POST’ lacked any distinctiveness.

The decision of the Boards of Appeal of 11/03/2010 in proceedings R 17/2009-4 – SKIN’UP/SKIN concluded that there was no likelihood of confusion on account of the lack of distinctiveness of the element ‘SKIN’ for the goods at issue.

Consequently, for the reasons given above, the cases mentioned by the EUTM proprietor cannot be considered analogous to these proceedings.

Also, the EUTM proprietor has filed no documents to prove that the marks have co-existed and that this situation has precluded the likelihood that, when confronted with the marks, the relevant consumers would confuse the origins of the goods/services they protect.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part 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 Cancellation Division

Carmen SÁNCHEZ PALOMARES

María Belén IBARRA DE DIEGO

Ana MUÑIZ RODRÍGUEZ

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 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.