OPPOSITION No B 2 593 211

Affinity Petcare, S.A., Plaça Europa 54-56, 08902 L’Hospitalet De Llobregat (Barcelona), Spain (opponent), represented by Isern Patentes Y Marcas, S.L., Avenida Diagonal, 463 bis, 2° piso, 08036 Barcelona, Spain (professional representative)

a g a i n s t

Bunge Loders Croklaan B.V., Hogeweg 1, 1521 AZ Wormerveer, Netherlands (applicant), represented by NLO Shieldmark B.V., New Babylon City Offices. 2e étage Anna van Buerenplein 21A, 2595DA Den Haag, Netherlands (professional representative).

On 17/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 593 211 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 14 284 616 ‘VITAVANCE’. The opposition is based on European Union trade mark registration No 4 255 981 ‘ADVANCE’. The opponent invoked Article 8(1)(b) and Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will 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 for 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: 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.

a) Reputation of the earlier trade mark

According to the opponent, the earlier trade mark has a reputation in the European Union.

Reputation implies a knowledge threshold that 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 23/06/2015. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in 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, which after a partial revocation of the earlier mark (following the final decision of 03/02/2017 in the cancellation proceedings No 12 502 C) are as follows:

Class 31: Foodstuffs for cats and dogs; edible bones and treats for dogs; ready-made foodstuffs for cats and dogs.

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 mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.

On 08/03/2016 the opponent submitted the following evidence:

 Annex 1: Printouts from the opponent’s website www.affinity-petcare.com (in English and Spanish), presenting the history of the company; the earlier mark is exhibited in relation to nutrition products for cats and dogs.

 Annex 2: A catalogue (there are references to 2011, in English, Spanish and French). The earlier mark is depicted in relation to ‘veterinary diets’ and ‘nutrition for optimal health’, which appears to be packaged food for cats and dogs.

 Annex 3: Three excerpts from the magazine ‘Petfood Industry’ (in English), dated between 2007 and 2009; all of them give a list of the ‘Top 10’ industry leaders, listing at number six ‘Affinity Petcare SA’, with, inter alia, ‘Advance’ among its top brands for pet foods. It is stated that the company offers a wide range of products ‘from special veterinary diets to superpremium foods to value-priced products for cats and dogs’; a printout from www.pet-food-choice.co.uk (printing date 08/02/2012), giving a brief description of ‘some of main UK’ pet food companies, inter alia, Affinity Petcare UK. ‘Advance Pet Nutrition dry dog food’ is mentioned among the company’s products. It is explained that the company is ‘the third-largest supplier of dry pet food in Europe and the brand leader in Spain’.

 Annex 4: Seven press clippings (from Peluts, Argos, El Mundo Del Gato, Especies) dated September 2005 to September 2009 (in Spanish with partial translation in English), containing advertisements of ‘Advance’ products for cat and dog food.

 Annex 5: ‘Research Reports’, carried out by the opponent, depicting at the top of the page the sign . The document provides information on ‘the application of plant polyphenols in canine diets’. It is stated by the opponent that the document was published in 2009 in the ‘Journal of Nutrigenetics & Nutrigenomics (2009)’; however, in the document there is only a reference to an ‘[a]bstract published in the journal Compendium on Continuing Education for the Practicing Veterinarian (2006)’.

 Annexes 6 and 8: Press cuttings concerning sponsorship (as explained by the opponent) (in Spanish with partial translation in English), from Animalia/211/December_2009 (the sign is depicted with a photo of cat food); printouts from www.formulatv.com and www.zaragozadeporte.com, dated February 2011 (referring to Advance 2011 being a race crossing the Pyrenees with dogs), the sign appears in some photos on participants’ T-shirts; printouts of results, which appear to be from the competition ‘Advance Pirena’ in 2006, 2008, 2009, 2010 and 2011, which appear to be sled dog races; printout, named ‘Edbrios & Blue Ivanhoe’ (refers to the website www.edbrios.com in English), dated June 2006 and showing pictures of what appears to be a dog exhibition in Helsinki (the sign is visible on the photos with the dogs); printouts, dated 2010-2011, from www.avepa.org (depicting the earlier mark in relation to a congress of veterinary specialists) and http://noticiasaxoncomunicacion.net (referring to ‘Affinity Advance’ as a sponsor of the AMVAC Congress).

 Annex 7: ‘Dossier on the ADVANCE products and advertising’ (in Spanish with partial translation of some sentences in English). It refers to ‘Advance Channel’, without further information as to what that may be, and contains ‘Tag’ (2006), which appears to be a magazine also referring to ‘Advance Channel’; several pages/printouts, dated 2008-2010, which refer to ‘Advance Veterinary diets’ or ‘Advance’, depicting what appears to be cat and dog food.

 Annexes 9-12: Invoices, dated between 2011 and 2015, issued by ‘Affinity Petcare’ companies to other companies in Spain (the mark is mentioned twice as ‘Kit Advance Dog Mini’), Portugal, France, Belgium and Italy. There are also indications such as ‘AD (Maxi Adult)’ and ‘ADV (BISC.MINI&MED. S&R)’. There are product codes, but no information/document was submitted in regard to the products with these codes.

 Annex 13: A table, drawn up by the opponent, entitled ‘Gross Sales By Country’. It provides information about sales of cat and dog products in a number of countries in Europe for 2013-2015.

With regard to the documents submitted in languages different from the language of the proceedings, pursuant to Rule 19(2)(c), Rule 19(3) and Rule 98 EUTMIR (in the version in force at the time of commencement of the adversarial part), the evidence that the earlier right has a reputation must be submitted in the language of the proceedings or accompanied by a translation within the time limit for substantiation of the earlier right on which the opposition is based. The deadline for the opponent to substantiate its earlier rights (to submit further facts and evidence in support of the opposition) was 20/07/2018 (after an extension of the original time limit and suspension of the proceedings). The opponent submitted partial translations in English of the documents that were not in the language of the proceedings. According to Rule 19(4) EUTMIR (in the version in force at the time of commencement of the adversarial part), the Office will not take into account written submissions or documents, or parts thereof, that have not been submitted in or that have not been translated into the language of the proceedings, within the time limit set by the Office.

Therefore, the Opposition Division will take into account only the parts of the evidence that were submitted in the language of proceedings (i.e. parts of the text translated in English or references in English) or are at least self-explanatory (images, representations of the mark, publication and printing dates, etc.).

The Opposition Division finds that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a reputation.

Despite demonstrating some use of the earlier right for some of the relevant goods (mostly dog/cat foodstuffs), the evidence does not provide information about the recognition of the earlier mark in relation to these goods.

Most of the documents submitted are dated long before the relevant date. Only the invoices cover a period close to the relevant date (as the latest ones are dated in 2015). However, only two of them (one dated in 2014 and the other after the relevant date) contain the earlier mark. Some of the invoices bear abbreviations such as ‘AD’ or ‘ADV’, which, however, cannot be considered as a representation of the earlier mark. As noted above, without any further documents (e.g. catalogues containing the same product codes) showing that these are actually products that are marketed under the earlier mark, it cannot be objectively concluded that this is the case. Even if the invoices submitted were referring to sales of the relevant goods under the earlier mark, these documents would not suffice to indicate what the level of recognition of the mark is, as the amounts invoiced cannot be compared with any information about the competitors and the size of the market.

As far as the rest of the documents submitted are concerned, the document ‘Gross Sales By Country’ originates from the opponent and its content is not endorsed by an independent entity. Even though evidence originating from the opponent cannot be disregarded, it needs to be supported by additional evidence from an independent party, such as statements from the chamber of trade, proof showing the opponent’s participation in trade fairs and exhibitions, statements from customers, independent press articles published in specialised literature, etc.

However, this is not the case for the rest of the documents submitted. The research report in Annex 5 originates from the opponent and does not in any way reflect the potential recognition of the earlier mark for the relevant goods. Even though the excerpts from the magazine ‘Petfood Industry’ suggest that the opponent’s company has gained acknowledgement for pet food with some of its brands, inter alia, ‘Advance’, these documents date back to 2007-2009. The same is applicable for most of the evidence submitted, as the latest sources (a printout from www.pet-food-choice.co.uk) bear a printing date 08/02/2012, which is well before (more than three years) the relevant date of 23/06/2015.

Moreover, the market for products such as dog/cat foodstuffs has been changing and progressively developing. The market is dynamic, and there is a great variety of product types (dried, canned, semi-moist), flavours and ingredients (e.g. combinations including vitamins and minerals) targeting different results (improving vision, hair, tooth condition) or meant for different pet age groups. New varieties and forms are constantly put on the market, seeking the pet owners’ attention. Therefore, this product market is extremely competitive and very sensitive to new trends in maintaining pets’ health and proper nutrition. It is characterised by the frequent appearance of new products to meet particular necessities and the constantly changing preferences and concerns of the pet owners.

Therefore, it is considered that even if some of the documents submitted by the opponent (e.g. excerpts from magazines or printouts) could be given a certain credit as showing some knowledge of the earlier mark and awareness by the public in the year they were printed, this would not be later than 2012, and it cannot be considered to reflect the market reality more than three years later when the contested application was submitted. Awareness by the public at the time the contested application was filed still needs to be proved, and the evidence does not demonstrate that any recognition that might have existed more than three years before the relevant date is still valid and ongoing.

As a result, the evidence is insufficient to show the degree of recognition of the earlier trade mark by the relevant public. Under these circumstances, the Opposition Division concludes that the opponent failed to prove that its trade mark has a reputation. For the sake of completeness, the Opposition Division concludes that the evidence submitted by the opponent does not suffice to demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use either.

As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that the earlier trade mark has a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected insofar as it is based on this ground.

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

The goods on which the opposition is based are the following:

Class 31: Foodstuffs for cats and dogs; edible bones and treats for dogs; ready-made foodstuffs for cats and dogs.

The contested goods, after a limitation, are the following:

Class 5: Additives for the manufacture of foodstuffs for animals, for veterinary purposes; additives for the manufacture of fodder and animals foodstuffs; dietary supplements for animals; natural fodder additives for medical purposes; fodder additives based on vegetable oil; fodder additives based on fatty acids.

Class 31: Animal feed preparations; foodstuffs for animals; additives, including active ingredients for animal feed, animal foodstuff, food products for animals, not for medical purposes; foodstuffs for animals based on vegetable oil; foodstuffs for animals based on fatty acids.

An interpretation of the wording of the list of the contested goods is required to determine the scope of protection of these goods. The term ‘including’, used in the list indicates 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 (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

Furthermore, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

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 dietary supplements for animals are substances prepared for special dietary requirements with the purpose of treating or preventing disease in animals. The opponent’s foodstuffs for cats and dogs are in general substances used as food for cats and dogs. Even though the goods, as a general rule, have distinct manufacturers, they usually coincide in the relevant public and distribution channels. It is, therefore, considered that the goods are similar to a low degree.

The same, however, does not apply to the remaining contested goods, namely additives for the manufacture of foodstuffs for animals, for veterinary purposes; additives for the manufacture of fodder and animals foodstuffs; natural fodder additives for medical purposes; fodder additives based on vegetable oil; fodder additives based on fatty acids, as these appear to be only ingredients for the manufacturing of animal foodstuffs and fodder. Therefore, the link between these goods does not apply, as the distribution channels and the relevant public are usually different. Furthermore, the goods have a different purpose and nature, and they are neither in competition nor complementary. These goods are, therefore, considered dissimilar.

Contested goods in Class 31

The contested animal feed preparations; foodstuffs for animals; animal foodstuff, food products for animals, not for medical purposes; foodstuffs for animals based on vegetable oil; foodstuffs for animals based on fatty acids include as broader categories, or overlap with, the opponent’s foodstuffs for cats and dogs. Since the Opposition Division cannot dissect ex officio the broad categories of the contested goods, they are considered identical to the opponent’s goods.

The contested additives, including active ingredients for animal feed are products used in animal nutrition for purposes of improving the quality of feed and the quality of food from animal origin, or to improve the animals’ performance and health, for example providing enhanced digestibility of the feed materials. Therefore, these goods are not the main ingredients of the animal feeds, as they only improve certain characteristics of the final products. Furthermore, there is no complementarity in such cases simply because one ingredient is needed for the production/preparation of another foodstuff. Complementarity applies only to the use of goods and not to their production process (11/05/2011, T‑74/10, Flaco, EU:T:2011:207, § 40; 11/12/2012, R 2571/2011‑2, FRUITINI, § 8). They do not usually share the same origin or distribution channels with the opponent’s goods. Furthermore, the end user is different as the additives are bought by the animal feed manufacturer to produce the final product, which is purchased by the animal owner. The goods are considered dissimilar.

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 or similar to a low degree are directed at the public at large, but also at some professional animal (pet) breeders, looking to develop certain qualities or characteristics of the animal. The degree of attention may vary from average to higher than average depending on the price, the specialised nature of the goods purchased and the result sought.

c) The signs

ADVANCE	VITAVANCE
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark consists of the sole element ‘ADVANCE’, which is meaningful in English and it will be understood by part of the relevant public in the meaning of ‘the state of being in a better position than others who are competing against you; a way in which one thing is better than another’. It is not completely excluded that part of the public that have, in their languages, words similar to this one, for example part of the French- or the Spanish-speaking public, could also perceive the meaning of ‘moving forward’ (from the Spanish and French word ‘avance’). For part of the relevant public, such as Latvian or Polish, it will have no particular meaning. Therefore, for the part of the relevant public that would perceive the meaning, specified above, the word ‘ADVANCE’ is considered weak, as it refers to the relevant goods being a step forward or better than others. For the part of the public for which the word does not convey a meaning, it is of average distinctiveness.

The sole element of the contested sign, ‘VITAVANCE’, as such will trigger no meaning for at least part of the relevant public (e.g. the Bulgarian- and Latvian-speaking part of the public) and therefore its distinctiveness is considered to be average for that part of the public. The opponent stated that due to the inclusion of the part ‘AVANCE’ the contested sign might convey a relation to the word ‘ADVANCE’ in the earlier mark. The Opposition Division does not share the opponent’s opinion, and the latter did not submit any evidence or arguments in favour of such a claim.

The public reads from left to right, and therefore it is not excluded that part of the public may perceive the beginning (prefix) as ‘VITA’ (particularly taking into account the relevant goods), from the Latin term ‘vita’ in the meaning of ‘life, livelihood’. This is so as comparable terms exist in a number of European languages, for example ‘vital’ in English, meaning ‘necessary for the success or continued existence of something; energetic; relating to life’ (information extracted from Cambridge Dictionary at https://dictionary.cambridge.org/dictionary/english/vital), ‘vital’ in French, German, Spanish and Portuguese, ‘vita’ in Italian and ‘vitaal’ in Dutch. In that case the component/prefix ‘VITA’ would be seen as a reference to the positive result that the relevant goods have on maintaining the health and well-being of the pets; hence, it is weak for the relevant goods for that part of the public.

Even though, as noted above, the word ‘avance’ exists in some languages in the relevant territory, it is unlikely that the relevant consumer would filter it out of the sequence of letters ‘VITAVANCE’. As the consumer reads from left to right, if a meaning is to be perceived in the contested sign, this is likely to be the sequence ‘VITA’, present at the beginning of the sign, as analysed above. This, however, is unlikely to leave the remaining part (‘VANCE’) to be related to ‘avance’ or to ‘advance’, as that would require artificially dissecting the sign and/or adding letters to make a meaning, which the average consumer, being reasonably observant and circumspect, is unlikely to engage in when perceiving the contested sign.

Finally, it is not excluded that the entire element ‘VITAVANCE’ of the contested sign, due to its beginning, would be perceived by part of the public as somewhat alluding to life or vitality, and then its distinctiveness would be lower than average for that part of the public.

Therefore, conceptually, part of the public will associate the signs with dissimilar meanings or would attribute a meaning to only one of the signs or a component thereof (as referred to above). It follows that for that part of the public the signs are conceptually not similar.

As it is not excluded that for part of the public neither of the signs will convey a particular meaning, the conceptual comparison is not possible. Therefore, the conceptual aspect does not influence the assessment of the similarity of the signs for that part of the public.

Visually and aurally, the signs coincide in the sequence of letters ‘***a*vance’. They differ in the second letter ‘D’ of the earlier mark and in the first three letters ‘VIT’ of the contested sign. Furthermore, the consonant-vowel structure of the signs is aurally different, due to the differing sound of the letter ‘D’ of the earlier mark and the sound of the letters ‘VIT’ (additional syllable) at the beginning of the contested sign. The signs have a different rhythm and intonation.

As noted above, consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. The part placed in the left section of the sign (the initial part) will usually be the one that first catches the attention of the reader. The beginnings of the signs are completely different, as in the contested sign the coinciding sequence of letters ‘***a*vance’ is preceded by the sequence of letters ‘VIT’. Therefore, the differences in the beginnings of the signs are of material importance when assessing the likelihood of confusion between the signs.

Following from the above and taking into account what has been said about the distinctiveness of the elements and components of the signs, the signs are visually and aurally similar only to a low degree.

As the signs have been found similar (although to a low degree) 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.

According to the opponent, the earlier trade mark has a reputation as result of its long-standing and intensive use in the European Union in connection with all the goods for which it is registered. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 18).

The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade mark has already been examined above under the grounds of Article 8(5) EUTMR, where it has been established that the evidence does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness (or reputation) through its use.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as lower than average for all of the goods in question and for a part of the relevant public, namely the part that would perceive the meaning of the element ‘ADVANCE’. The mark has a normal degree of distinctiveness for the remaining part of the relevant public, where it has no meaning in relation to the goods in question.

e) Global assessment, other arguments and conclusion

The goods are partly identical, partly similar to a low degree and partly dissimilar, and the earlier mark is considered to have an average degree of distinctiveness for part of the relevant public and a lower-than-average degree of distinctiveness for another part of the relevant public. The degree of attention is considered to vary from average to higher than average.

The signs are visually and aurally similar to a low degree, due to the letters and sounds that they have in common, as specified above; they are conceptually not similar or the conceptual aspect does not affect the comparison of the signs. The differences, however, are clearly perceptible to the relevant public; these differences lie in the signs’ differing beginnings, letters and sounds (and rhythm and intonation).

The abovementioned differences are sufficient to outweigh the similarities between the signs. Therefore, the Opposition Division does not find it plausible to conclude that the relevant consumer, who, for the purposes of the assessment, is considered reasonably well informed and reasonably observant and circumspect, might believe that the goods, even when identical, come from the same undertaking or economically linked undertakings, even when the level of attention is average.

The opponent refers to previous decisions of the Office, including those concerning the earlier sign, to support its arguments for a likelihood of confusion between the signs at issue. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous cases referred to by the opponent are not relevant to the present proceedings, as in the cases referred to the earlier mark was either a separate identifiable element in the contested sign or at least present in its beginning, or there were sequences of letters and sounds triggering a higher level of similarity between the signs, which is not applicable to the signs at issue.

Considering all the above, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Zuzanna STOJKOWICZ

Irina SOTIROVA

Claudia ATTINÀ

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.