OPPOSITION Nо B 2 698 952

 

Chadha Oriental Foods Limited, W T House Bessemer Road, Welwyn Garden City AL7 1HT, United Kingdom (opponent), represented by Lane IP Limited, The Forum, St Paul’s, 33 Gutter Lane, London EC2V 8AS, United Kingdom (professional representative) 

 

a g a i n s t

 

Asiana Limited, Asiana House, Dabell Avenue, Blenheim Industrial Estate, Nottingham NG6 8WA, United Kingdom (applicant), represented by Fencer BV, Esplanade 1 Box 5, 1020 Brussels, Belgium (professional representative).

On 07/05/2021, the Opposition Division takes the following

 

 

DECISION:

  

1.	Opposition No B 2 698 952 is partially upheld, namely for the following contested goods:

 

	Class 29: All the goods in this Class. Class 30: All the goods in this class, except ice; none of the aforementioned containing chocolate. Class 31: Fresh fruits and vegetables. Class 32: All the goods in this Class. Class 33: All the goods in this Class.
2.	European Union trade mark application No 14 758 304 is rejected for all the above goods. It may proceed for the remaining goods.

 

3.	Each party bears its own costs.

 

REASONS

 

On 09/05/2016, the opponent filed an opposition against all the goods of European Union trade mark application No 14 758 304 (figurative mark), namely against all the goods and services in Classes 5, 6, 16, 20, 21, 29, 30, 31, 32, 33.

The opposition is based on the following earlier rights:

 EUTM registration No 4 384 608, (figurative mark), in respect of which the opponent invoked  Article 8(1)(b) and Article 8(5) EUTMR;

 national trade mark registration (United Kingdom) No 2 135 809, (figurative mark), in respect of which the opponent invoked  Article 8(1)(b) and Article 8(5) EUTMR;

 national trade mark registration (United Kingdom) No 2 381 055, (figurative mark), in respect of which the opponent invoked  Article 8(1)(b) and Article 8(5) EUTMR;

 EUTM registration No 7 486 211, (figurative mark), in respect of which the opponent invoked  Article 8(1)(b) and Article 8(5) EUTMR;

 non-registered trade mark in the United Kingdom, ‘SILK ROAD’ (word mark), in respect of which the opponent invoked Article 8(4) EUTMR.

The opponent invoked  Article 8(1)(b) EUTMR, Article 8(4) EUTMR, Article 8(5) EUTMR.

 

 

EARLIER UK RIGHTS AND GROUNDS SOLELY RELATED TO UK TERRITORY

 

On 01/02/2020, the United Kingdom (UK) withdrew from the EU subject to a transition period until 31/12/2020. During this transition period EU law remained applicable in the UK. As from 01/01/2021, UK rights ceased ex-lege to be earlier rights protected ‘in a Member State’ for the purposes of proceedings based on relative grounds. The conditions for applying Article 8(1), (4) and (5) EUTMR, worded in the present tense, must also be fulfilled at the time of decision taking. It follows that national trade mark registration (United Kingdom) No 2 135 809, , national trade mark registration (United Kingdom) No 2 381 055, , and non-registered trade mark in the United Kingdom, ‘SILK ROAD’ no longer constitute a valid basis of the opposition.

 

The opposition must therefore be rejected as far as it is based on these earlier rights. Likewise, since Article 8(5) EUTMR was only invoked specifically for the territory of the United Kingdom, and evidence for the UK territory cannot be taken into account for the reasons explained above, the opposition must also be rejected as far as it is based on Article 8(5) EUTMR. The examination of the opposition will continue as regards the two earlier EUTMs and with Article 8(1)(b) EUTMR as the basis.

 

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.

 

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s EUTM registration No 7 486 211.

 

a) The goods

 

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

 

Class 29: Meat and meat products; fish and fish products; poultry and poultry products; game; meat extracts; preserved, dried and cooked fruits and vegetables; salads; preserves; pickles, vegetable purees and extracts, instant meals, prepared meals and ingredients therefor, snack foods, edible oils and fats.

Class 30: Bread, cereal and cereal preparations; flour, pastry and confectionery; preparations for making sauces; sauces; spices, condiments, essences, flavourings, instant meals, prepared meals and constituents for meals; snack foods.

Class 33: Alcoholic beverages; Chinese rice wine; spirits and liqueurs; alcopops; alcoholic cocktails.

The contested goods, following a limitation by the applicant and the prior decision in Opposition No B 2 698 556, are the following:

 

Class 5: Food for babies; dietary supplements for humans and meal replacements.

Class 6: Metallic packaging containers for food and drink; aluminium containers for packaging food and drink.

Class 16: Paper, cardboard not included in other classes; printed matter and printed publications; books, brochures, catalogues; recipes; recipe cards and recipe books; binders for recipe collections; printed plastic cards; stationery; plastic materials for packaging (not included in other classes); paper materials for packaging (not included in other classes); cardboard materials for packaging (not included in other classes); packaging of plastic, paper or cardboard for packaging food and drink products; plastic bags; paper bags; cartons of plastic for packaging food and drink products; cartons of paper or cardboard for packaging food and drink products.

Class 20: Plastic containers; containers of plastic for packaging; containers of plastic for packaging food and drink; plastic trays used in food packaging; food containers for commercial packaging use.

Class 21: Household or kitchen utensils and containers; containers for food and drink; cartons for food and drink; foil food containers; food and drink storage containers; containers and cartons of plastic for food and drink.

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried, frozen and cooked fruits and vegetables; tinned vegetables; tinned fruit; frozen vegetables; frozen fruit; soups; tinned soups; frozen soups; soup cubes; soup powders; soup pastes; stock cubes; jellies; jams; compotes; eggs; pickles; pineapple pieces (tinned); corn snacks; nut snacks; dried fruit snacks; dried vegetable snacks; fresh fruit snacks; fresh vegetable snacks; cooked fruit snacks; cooked vegetable snacks; fish pastes; meat pastes; poultry pastes; vegetable pastes.

Class 30: Sugar; rice; rice flakes; rice flour; tapioca; sago; flour; bread; prawn crackers; spring rolls noodles; vermicelli; honey; treacle; yeast; powders namely spices, chilli powder, curry powder, baking powder, custard powder, anardana powder; salt; mustard vinegar; sauces (condiments); sauce powders; spices; seasonings; ice; crispbread snacks; savoury snacks; sesame snacks; thickeners; noodle based prepared meals; fruit sauces; none of the aforementioned containing chocolate.

Class 31: Grains and agricultural, horticultural and forestry products not included in other classes; fresh fruits and vegetables; seeds; natural plants and flowers; malt.

Class 32: Beers.

Class 33: Alcoholic beverages (except beers); wine; cooking wine; rice wine; sake.

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods.

The term ‘namely’, used in the applicant’s list of goods to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

As a preliminary remark, 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 Classes 5

All the contested goods in this Class, food for babies; dietary supplements for humans and meal replacements, are specific formulations aimed at providing specific nutrients to infants or adults, for medical reasons. They are dissimilar to all the opponent´s goods in Classes 29, 30 and 33 – being ordinary foodstuffs, food-related goods such as ingredients for preparing food, and alcoholic beverages. The goods in question have different natures (medical or healthcare-related goods as opposed to foodstuffs and beverages), specific intended purposes (e.g. to treat specific nutritional or health needs as opposed to quenching thirst and hunger) and different methods of use. They usually originate from different entities and are neither complementary, in the sense that one is not indispensable for the use of the other, nor in competition. Furthermore, they are sold through different distribution channels, given that the contested goods are most typically offered in pharmacies and drugstores whereas the opponent´s goods are sold in supermarkets or grocery stores. The fact that the contested goods in Class 5 may be in the form of foods or beverages is not enough to conclude that these goods are similar to the opponent’s goods in Classes 29, 30 and 33.

The General Court has held that the mere fact that food supplements (in Class 5) may have ordinary nutritional functions in addition to their main function, which is a medical function in the broad sense of the term or one compensating for nutritional deficiencies, does not warrant such supplements being considered beverages (much less alcoholic beverages in Class 33) or food products in Classes 29 and 30 as the case may be. These secondary aspects do not alter the fact that the average consumer does not consume nutritional supplements, vitamins and dietetic preparations as ordinary food or to quench thirst (23/01/2014, T-221/12, Sun fresh, EU:T:2014:25, § 72). Therefore, despite the contested goods possibly having ordinary nutritional functions in addition to their main function (which is medical-related, as explained above), the fact remains that they are preparations or supplements for treating or preventing diseases or improving people’s health.

On the basis of the above, all the contested goods in Class 5 must be considered dissimilar to the opponent’s goods in Classes 29, 30 and 33.

Contested goods in Classes 6, 16, 20, 21

 

The contested goods in these classes are different containers or packaging, paper, cardboard, stationary and related items, printed matter, and household utensils.

They are dissimilar to all the opponent´s goods in Classes 29, 30 and 33 – being foodstuffs, food-related goods such as ingredients for preparing food, and alcoholic beverages. The goods in question have different natures, specific intended purposes and different methods of use. They usually originate from different entities and are neither complementary, in the sense that one is not indispensable for the use of the other, nor in competition. Furthermore, they are sold through different distribution channels. The fact that the contested goods that are containers or packaging can be used to store or transport foods or beverages is not enough to conclude that these goods are similar to the opponent’s goods in Classes 29, 30 and 33.

Contested goods in Class 29

Meat, fish, poultry and game; meat extracts; preserved, dried, frozen and cooked fruits and vegetables; pickles are identically contained in both lists of goods.

The contested tinned vegetables; tinned fruit; frozen vegetables; frozen fruit; pineapple pieces (tinned); jellies; jams; compotes are included in the broad category of, or overlap with, the opponent’s preserved, dried and cooked fruits and vegetables. Therefore, they are identical.

The contested soups; tinned soups; frozen soups; soup cubes; soup powders; soup pastes; stock cubes are included in the broad category of the opponent’s prepared meals and ingredients therefor. Therefore, they are identical.

The contested corn snacks; nut snacks; dried fruit snacks; dried vegetable snacks; fresh fruit snacks; fresh vegetable snacks; cooked fruit snacks; cooked vegetable snacks are included in the broad category of, or overlap with, the opponent’s snack foods. Therefore, they are identical.

The contested fish pastes; meat pastes; poultry pastes are included in the broad categories of the opponent’s  fish products; meat products; poultry products respectively. Therefore, they are identical.

The contested vegetable pastes overlap with the opponent´s vegetable purees. Therefore, they are identical.

The contested eggs are similar to a low degree to the opponent´s poultry, as they usually coincide in producer, relevant public and distribution channels.

Contested goods in Class 30

The contested bread; none of the aforementioned containing chocolate is included in the broad category of the opponent’s bread. Therefore, they are identical.

The contested rice; rice flakes; tapioca; sago; vermicelli; prawn crackers; spring rolls noodles; noodle based prepared meals; none of the aforementioned containing chocolate are included in the broad categories of, or overlap with, the opponent’s instant meals, prepared meals and constituents for meals. Therefore, they are identical.

The contested rice flour; flour; none of the aforementioned containing chocolate are included in the broad category of the opponent’s flour. Therefore, they are identical.

The contested crispbread snacks; savoury snacks; sesame snacks; none of the aforementioned containing chocolate are included in the broad category of the opponent’s snack foods. Therefore, they are identical.

The contested powders namely spices, chilli powder, curry powder, anardana powder; salt; mustard vinegar; sauces (condiments); sauce powders; spices; seasonings; fruit sauces; none of the aforementioned containing chocolate are included in the broad category of the opponent’s sauces, spices, condiments. Therefore, they are identical.

The contested honey; none of the aforementioned containing chocolate is similar to the opponent´s preserved fruits in Class 29, as they usually coincide in relevant public, distribution channels and method of use. Furthermore they are in competition.

The contested yeast; powders namely baking powder, custard powder; thickeners; none of the aforementioned containing chocolate are similar to the opponent´s flour, as they usually coincide in relevant public, distribution channels and producer.

The contested sugar; none of the aforementioned containing chocolate is similar to the opponent´s flavourings, as they have the same purpose. They usually coincide in relevant public, distribution channels and method of use. Flavouring refers to the introduction of a new flavour to a food item by altering or modifying that particular food's original flavour. Flavourings often require cooking to render their basic attributes to the food and to alter its form and flavour. On the other hand, sugar is a sweet substance used to make food taste sweet. Seasoning and sugar are used for flavouring food (seasoning is used to improve the taste, while sugar is added to give to food to make it sweeter). While certain types of flavourings (for example, artificial flavourings) may be preferred by professionals, and sugar will be used by all consumers, this does not change the fact that both address both target publics. Therefore, the goods under comparison are likely to be distributed through the same channels (wholesalers would be preferred by professionals, and retailers, supermarkets, etc., would be preferred by general consumers).

The contested treacle; none of the aforementioned containing chocolate is similar to a low degree to the opponent´s preserved fruits in Class 29, as they usually coincide in purpose and method of use.

However, the contested ice; none of the aforementioned containing chocolate is dissimilar to all the opponent´s goods in Classes 29, 30 and 33 – being foodstuffs, food-related goods such as ingredients for preparing food, and alcoholic beverages, while ice is frozen water. The goods in question have different natures, specific intended purposes and different methods of use. They usually originate from different entities and are neither complementary, in the sense that one is not indispensable for the use of the other, nor in competition. Furthermore, they are sold through different distribution channels. The fact that the contested goods can be used to preserve foods or cool beverages is not enough to conclude that these goods are similar to the opponent’s goods in Classes 29, 30 and 33.

Contested goods in Class 31

The contested fresh fruits and vegetables are similar to a low degree to the opponent´s preserved fruits and vegetables in Class 29, as they usually coincide in relevant public and distribution channels. Furthermore they are in competition.

However, this does not apply to the remaining contested grains and agricultural, horticultural and forestry products not included in other classes; seeds; natural plants and flowers; malt. Although some of these goods may be for human consumption, they are not sufficiently related to the opponent’s goods in Classes 29, 30 and 33. Most of these goods usually undergo some processing or treatment before being served for consumption, or have different natures from the opponent’s goods. Consumers would not necessarily think that responsibility for the production of those goods and the opponent’s goods lies with the same undertaking. The goods under comparison have different commercial origin and different methods of use. Therefore, they are considered dissimilar.

Contested goods in Class 32

The contested beers are similar to the opponent´s alcoholic beverages, as they have the same nature. They usually coincide in producer, relevant public and distribution channels.

Contested goods in Class 33

The contested alcoholic beverages (except beers); wine; cooking wine; rice wine; sake are included in the broad category of the opponent’s alcoholic beverages. Therefore, they are identical.

 

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 varying degrees are directed at the public at large. 

 

The degree of attention is considered to be average.

 

 

c) The signs

 

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 element ‘SILK’ of the earlier mark and of the contested sign will be understood as ‘a fine, strong, soft lustrous fibre produced by silkworms in making cocoons and collected to make thread and fabric’ (see https://www.lexico.com/definition/silk) by the English-speaking part of the relevant public. For the non-English-speaking part of the public, this element will have no meaning. Whether or not the word `SILK` is understood, as it has no meaning in connection with the goods, it is distinctive.

The element ‘ROAD’ of the earlier mark will be understood as ‘wide way leading from one place to another, especially one with a specially prepared surface which vehicles can use’ (see https://www.lexico.com/definition/road) by the English-speaking part of the relevant public. For the non-English-speaking part of the public, this element will have no meaning. Whether or not the word `ROAD` is understood, as it has no meaning in connection with the goods, it is distinctive.

The earlier sign is also composed of figurative elements, namely the grey background and the Asian characters. While the grey background is a less distinctive figurative element of a purely decorative nature, the Asian characters will be perceived as alluding to the origin of the goods and will therefore be weak.

The elements ‘SILK ROAD’ in the earlier mark are the co-dominant elements as they are the most eye-catching, due to their size and central position.

The element ‘PREMIUM’ of the contested sign is an English word that, when used as a modifier, relates to or denotes a commodity of superior quality and therefore a higher price. The General Court has held that this word confers a certain prestige and a connotation of excellence on its object and that it will be easily understood by the average consumer of the European Union because of its frequent use in the field of trade in goods (22/05/2012, T-60/11, Suisse Premium, EU:T:2012:252, §§ 40 and 46; 12/01/2005, T-334/03, Europremium, EU:T:2005:4, § 43). Therefore, this element is considered laudatory for the relevant public, who will not pay attention to this weak element and will focus their attention on the other more distinctive elements of the mark.

The contested sign is also composed of figurative elements, namely the red rectangular background and the gold stylized house. While the red rectangular background is a less distinctive figurative element of a purely decorative nature, the gold stylized house has no meaning in connection with the goods and is therefore distinctive.

The element ‘SILK’ in the contested sign is the dominant element as it is the most eye-catching, due to its size and central position.

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).

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right (and top to bottom), which makes the part placed at the left (and top) of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in the element ‘SILK’, which is distinctive for the relevant goods, whether its meaning is understood or not. This element is the initial and co-dominant element of the earlier mark and the dominant element of the contested sign. The marks differ in the additional verbal element of the earlier mark ‘ROAD’, which is distinctive, and of the contested sign, ‘PREMIUM’, which, however, is laudatory. The marks also differ in the figurative elements of the signs, which have a lower impact as explained above.

Therefore, the signs are similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the syllable ‘SILK’, which is present identically in both signs and constitutes the initial and co-dominant element of the earlier mark and the dominant and most distinctive verbal element of the contested sign. The pronunciation differs in the syllables ‘ROAD’ or ‘RO-AD’ of the earlier mark and ‘PRE-MI-UM’ of the contested sign, which have no counterparts in the other sign. ‘ROAD’ is distinctive, yet placed in second place after the coinciding verbal element ‘SILK’. However, ‘PREMIUM’ is laudatory for the entire relevant public and therefore the public will not pay as much attention to this weak element as to the other more distinctive element of the contested sign. The additional figurative elements are of no relevance when assessing aural similarity since they will not be pronounced.

Therefore, the signs are similar to an above average degree.

Conceptually, for the English-speaking part of the public that understands the elements ‘SILK’ and ‘ROAD’, both signs share the same concept, as they coincide in the verbal element ‘SILK’, yet differ in ‘ROAD’.

They also differ in the element ‘PREMIUM’ of the contested sign, which will be understood as indicating high quality or referring to a special line of products, and therefore this difference is not particularly striking. Finally, the signs also differ conceptually in the gold stylized house of the contested sign and the Asian characters of the earlier mark. Therefore, for the English-speaking part of the public, the signs are conceptually similar to an average degree.

For the part of the public that does not understand the element ‘SILK’ or ‘ROAD’, the signs as a whole do not have any meaning. However, the figurative element of the contested mark will be perceived as a stylized house, and the Asian characters in the earlier mark will also be perceived as such. The element ‘PREMIUM’ is laudatory and therefore will have a low impact for the relevant public.

Therefore, the signs are not conceptually similar for the non-English-speaking part of the public.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element in the mark, as stated above in section c) of this decision.

 

e) Global assessment, other arguments and conclusion

 

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

In the present case, the goods have been found partially identical, partially similar to different degrees and partially dissimilar. The goods target the general public with an average degree of attention. The signs are visually similar to an average degree, aurally similar to an above average degree and conceptually either similar to an average degree or not similar. They coincide in the fully distinctive verbal element ‘SILK’, which occupies either the initial or the dominant position in both of the signs, thereby capturing most of the consumer´s attention. The inherent distinctiveness of the earlier mark is normal.

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

 

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).

 

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration. 

 

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees to those of the earlier trade mark, including those found to be similar to only a low degree.

  

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

The opponent has also based its opposition on the EUTM registration No 4 384 608, (figurative mark).

Since this mark covers a narrower scope of goods, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

Since the opposition is partially successful on the basis of the inherent distinctiveness of the earlier marks, there is no need to assess the enhanced degree of distinctiveness of the opposing marks due to their reputation as claimed by the opponent and in relation to identical and similar goods and. The result would be the same even if the earlier marks enjoyed an enhanced degree of distinctiveness.

Likewise, there is no need to assess the claimed enhanced degree of distinctiveness of the opposing marks in relation to dissimilar goods, as the similarity of goods and services is a sine qua non for there to be likelihood of confusion. The result would be the same even if the earlier marks enjoyed an enhanced degree of distinctiveness.

 

COSTS

 

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

 

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

 

 

 

The Opposition Division

 

 

Marzena MACIAK

Helen Louise MOSBACK

María del Carmen COBOS PALOMO

 

 

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.