OPPOSITION No B 2 696 303

GoPro, Inc., 3000 Clearview Way, Bldg E, San Mateo California 94402, United States of America (opponent), represented by Lane IP Limited, 2 Throgmorton Avenue, London EC2N 2DG, United Kingdom (professional representative)

a g a i n s t

Shenzhen Huaruibo Photoelectric Co. Ltd., Room 1308, Qiurui Building, Minkang Road, Minzhi Street, Longhua District, Shenzhen City, Guangdong Province, People’s Republic of China (applicant), represented by AL & Partners S.R.L., Via C. Colombo ang. Via Appiani (Corte del Cotone), 20831 Seregno (MB), Italy (professional representative)

On 01/09/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 696 303 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 and services of European Union trade mark application No 14 958 409. The opposition is based on European Union trade mark registrations No 6 750 376 HERO, No 12 632 832 HERO No 15 508 500 HERO, No 11 946 183 BE A HERO and European Union application No 13 881 263 HEROCAST. The opponent invoked Articles 8(1)(b) and 8(5) EUTMR.

HERO BE A HERO HEROCAST
Earlier trade marks	Contested sign

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.

1. The goods and services

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

European Union trade mark registration No 6 750 376 HERO

Class 9: Compact digital cameras and accessories therefore, namely cases, housings and camera straps.

European Union trade mark registration No 12 632 832 HERO

Class 41: Photographic and video services, namely, photographic and video capture; rental of photographic equipment, namely cameras, digital cameras, video cameras, camera cases, housings, and accessories for cameras, namely, batteries, lenses, digital photo viewers, wireless adapters, power adapters, adapter rings for attaching objects to cameras, remote controls, microphones, SD cards, photographic flash units, mounting devices for photographic equipment, tripods and camera straps; education; providing training, education, instruction, tips and advice in the field of photography and videography; providing photographic and video content on a website on the internet and via mobile devices for educational and entertainment purposes; entertainment; sporting and cultural activities; entertainment services, namely, providing a website featuring photographic, audio, video and multimedia presentations; provision of audio and video in the nature of digital images and videos; provision of downloadable multimedia files containing audio and video content; hosting and providing a database/library in the field of photography and videography; providing photographic and video content for the creation of television programs, television commercials, motion pictures and films; providing online journals, namely blogs, for sharing thoughts, ideas, experiences, comments, tips, techniques, and advice in the field of photography and videography; providing conferences, trade shows, seminars, workshops and tutorials in the field of photography and videography.

European Union trade mark registration No 15 508 500 HERO

Class 9: Photographic equipment, namely cameras, digital cameras, video cameras; portable handheld electronic devices for recording, storage, transmission or reproduction of photographic, video and multimedia content; cases, housings, and accessories for cameras, namely, batteries, lenses, digital photo viewers, wireless adapters, power adapters, adapter rings for attaching objects to cameras, remote controls, microphones, SD cards, photographic flash units, mounting devices for photographic equipment, tripods and camera straps; cases and bags for photographic apparatus; computer software for use in connection with photographic and video equipment and cameras; desktop and mobile photo and video editing software; computer software and software applications for use in uploading, downloading, editing, storing, distributing and sharing photographic and video content via global and local computer networks and via mobile devices; downloadable user generated photos and videos in the field of general interest; scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; Compact discs, DVDs and other digital recording media; mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment, computers; computer software; fire-extinguishing apparatus.

Class 42: Providing a web hosting platform for uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content; providing temporary use of online non-downloadable software for use in uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content via local and global computer networks and via mobile devices; providing temporary use of on-line non-downloadable cloud computing software for use in uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content via local and global computer networks and via mobile devices; peer-to-browser photo sharing services, namely, providing a website featuring technology enabling users to upload, view, and download digital photos and videos; providing a web site featuring temporary use of non-downloadable software allowing web site users to upload on-line videos for sharing with others for entertainment purposes; providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs; computer services, namely, providing search platforms to allow users to locate, access, copy, transmit, edit, and share photographic, video and multimedia content; scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

European Union trade mark registration No 11 946 183 BE A HERO and application No 13 881 263 HEROCAST

Class 9: Photographic equipment, namely cameras, digital cameras, video cameras; Portable handheld electronic devices for recording, storage, transmission or reproduction of photographic, video and multimedia content; Cases, housings, and accessories for cameras, namely, batteries, lenses, digital photo viewers, wireless adapters, power adapters, adapter rings for attaching objects to cameras, remote controls, microphones, SD cards, photographic flash units, mounting devices for photographic equipment, tripods and camera straps; Cases and bags for photographic apparatus; Computer software for use in connection with photographic and video equipment and cameras; Desktop and mobile photo and video editing software; Computer software and software applications for use in uploading, downloading, editing, storing, distributing and sharing photographic and video content via global and local computer networks and via mobile devices; Downloadable user generated photos and videos in the field of general interest; Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; Compact discs, DVDs and other digital recording media; Mechanisms for coin-operated apparatus; Cash registers, calculating machines, data processing equipment, computers; Computer software; Fire-extinguishing apparatus.

Class 38: Video broadcasting; Streaming of video material on the internet; Broadcasting of audio and video content and programming over the internet; Electronic delivery of images and photographs via a global computer network and via mobile electronic devices; Electronic transmission and streaming of digital media content for others via global and local computer networks and via mobile electronic devices; Streaming user generated photographic and video content via a website on the internet and via mobile electronic devices; Telecommunications.

Class 41: Photographic and video services, namely, photographic and video capture; Rental of photographic equipment, namely cameras, digital cameras, video cameras, camera cases, housings, and accessories for cameras, namely, batteries, lenses, digital photo viewers, wireless adapters, power adapters, adapter rings for attaching objects to cameras, remote controls, microphones, SD cards, photographic flash units, mounting devices for photographic equipment, tripods and camera straps; Education; Providing training, Education, instruction, tips and advice in the field of photography and videography; Providing photographic and video content on a website on the internet and via mobile devices for educational and entertainment purposes; Entertainment; Sporting and cultural activities; Entertainment services, namely, providing a website featuring photographic, audio, video and multimedia presentations; Provision of audio and video in the nature of digital images and videos; Provision of downloadable multimedia files containing audio and video content; Hosting and providing a database/library in the field of photography and videography; Providing photographic and video content for the creation of television programs, television commercials, motion pictures and films; Providing online journals, namely blogs, for sharing thoughts, ideas, experiences, comments, tips, techniques, and advice in the field of photography and videography; Providing conferences, seminars, workshops and tutorials in the field of photography and videography.

Class 42: Providing a web hosting platform for uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content; Providing temporary use of online non-downloadable software for use in uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content via local and global computer networks and via mobile devices; Providing temporary use of on-line non-downloadable cloud computing software for use in uploading, downloading, storing, distributing, editing and sharing photographic, video and multimedia content via local and global computer networks and via mobile devices; Peer-to-browser photo sharing services, namely, providing a website featuring technology enabling users to upload, view, and download digital photos and videos; Providing a web site featuring temporary use of non-downloadable software allowing web site users to upload on-line videos for sharing with others for entertainment purposes; Providing a web site that gives computer users the ability to upload, exchange and share photos, videos and video logs; Computer services, namely, providing search platforms to allow users to locate, access, copy, transmit, edit, and share photographic, video and multimedia content; Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software.

The contested goods and services are the following:

Class 12: Electric vehicles; Remote control vehicles, other than toys; Bicycles; Two-wheeled trolleys; Trolleys; Pushchairs; Shopping trolleys [carts (Am.)]; Air vehicles; Aircraft; Water vehicles.

Class 18: Travelling trunks; Rucksacks; Pocket wallets; Wheeled shopping bags; Handbags; Trunks [luggage]; Animal skins; Umbrellas; Mountaineering sticks; Canes.

Class 35: Advertising; Import-export agencies; Presentation of goods on communication media, for retail purposes; Bill-posting; Outdoor advertising; Personnel management consultancy; Computerized file management; Drawing up of statements of accounts; Rental of vending machines; Organization of exhibitions for commercial or advertising purposes.

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.

The contested goods and services in Classes 12, 18 and 35 are considered dissimilar to the opponent’s goods and services in Classes 9, 38, 41 and 42.

Contested goods in Class 12

As regards the contested goods in Class 12, the opponent argues that there exists an overlap with photographic apparatus in Class 9 and, for example, the contested remote control vehicles, other than toys, based on the argument that this category may include ‘camera drones’. The mere fact that a certain product can be composed of several components does not establish automatic similarity between the finished product and its parts (27/10/2005, T-336/03, Mobilix, EU:T:2005:379, § 61). These goods are normally not manufactured by the same undertakings, because the manufacturing of drones requires very different specific techniques. These goods surely do not have the same method of use and are not in competition. Cameras are also parts of cars in parking assistance, but this does not make cars (or any other type of vehicle) similar to photographic apparatus. On the other hand, the goods may share the same sale outlets and may target the same consumers. However, these points in common are not sufficient to make these goods similar, not even to a low degree.

The opponent’s remaining goods in Class 9 are even further removed from all the contested goods in this class and the opponent’s services in Classes 38, 41 and 42 clearly show no link whatsoever with the contested goods.

Contested goods in Class 18

In respect of the contested goods in Class 18 the opponent argues that travelling trunks; rucksacks; wheeled shopping bags; handbags; trunks [luggage] are similar to the opponent’s cases and bags for photographic apparatus. The opponent refers to a previous decision of the Office to support its arguments. 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. The previous case referred to is, however, not particularly relevant to the present comparison of goods and services, since the opponent’s trade mark in that case was registered on 15/10/2001 for all the general indications of the heading of Class 18 and thus - in accordance with Communication No 2/12 of the President of the Office applicable at the time – enjoyed protection for all the goods included in the alphabetical list of that class in the edition of the Nice Classification in force at the time when the filing was made. This means that the earlier mark at the time covered all types of bags and cases in Class 18, which is not so in the present case.

The type of trunks, rucksacks and bags covered by the contested goods in Class 18 in the present case are those sold independently in – generally – specialized shops or specific departments of a department store. The opponent’s specific cases and bags for photographic apparatus are generally sold together with the apparatus, since they are specifically adapted for them. These goods do not follow the same distribution channels, do not target the same public and are not in competition, nor produced by the same companies. Even if they may share the purpose of carrying an item, this argument alone is not conclusive for finding a degree of similarity between them.

The opponent’s remaining goods in Class 9 are even further removed from all the contested goods in this class and the opponent’s services in Classes 38, 41 and 42 clearly show no link whatsoever with the contested goods.

Contested services in Class 35

The opponent argues that the contested services presentation of goods on communication media, for retail purposes; advertising; import-export agencies; bill-posting; outdoor advertising; organization of exhibitions for commercial or advertising purposes are similar to the opponent’s goods in Class 9 based on the assumption that the services could relate to any of those goods. First of all it must be noted that protection for these services does not extend automatically to goods of any kind and besides that, goods and services are by their nature not similar since goods are articles of trade, wares or merchandise and services consist of the provision of intangible activities.

The opponent refers to previous case-law which is not relevant to the present case, since the retail services of the opponent in that particular case where specified as relating to the same specific goods of the applicant in which case a degree of similarity may be established. Consequently, this argument is set aside because in the present case the contested services do not include any services specified to relate to the opponent’s goods.

Further the opponent claims that there exists similarity between the earlier peer-to-browser photo sharing services, namely, providing a website featuring technology enabling users to upload, view, and download digital photos and videos in Class 42 and the applicant’s computerised file management in Class 35. The Opposition Division fails to see a link. The contested services are of a completely different nature being services they serve to help in the day-to-day operation of an organisation and include activities typical of secretarial services. The opponent’s services, however, relate to computer programming and even if the contested services in Class 35 involve computers, this is not a reason for finding similarity since the services are not provided by the same companies, do not target the same public nor follow the same distribution channels. They are not in competition or complementary.

The clear similarity between the natures of organisation of exhibitions for commercial or advertising purposes and the opponent’s conferences, seminars, workshops and tutorials in the field of photography and videography in Class 41 – as argued by the opponent - cannot be established by the Opposition Division. The opponent’s services in Class 41 are essentially aimed at education, training and leisure, and are rendered by persons or institutions involved in the development of the mental faculties of people. Furthermore, their intention is to entertain or to engage the attention of others. The contested services, however, concentrate purely on the promotion of goods and/or services. The fields are not directly related, they all belong to different areas of activity, and of a different nature and have different initial purposes. Furthermore, these services are not likely to be provided for by the same undertaking, and they do not share the same target public. Moreover, the fact that some of the goods and services of the opponent can be used for education purposes does not entail that there exists a similarity between these services.

Lastly, it is argued that the opponent’s telecommunication services in Class 38 should be found similar to the applicant’s advertising. According to the opponent this conclusion should be drawn based on the fact that telecommunication forms an integral part of online advertising. However, the fact that an advertisement can be broadcasted through means of telecommunication and thus using it as a tool in performing a function is not a reason to establish similarity between these services. Telecommunication services allow people to communicate with one another by remote means and are provided by completely different companies than those of an advertising agency which study their client’s needs, provide all the necessary information and advice for the marketing of their products and services, and create a personalised strategy regarding the advertising of their goods and services through newspapers, websites, videos, the internet, etc. Consequently, they are different in nature, target different publics, are not in competition, nor complementary.

The opponent’s remaining goods in Class 9 and services in Classes 38, 41 and 42 are even further removed from the contested services in this class and clearly show no link whatsoever with them.

2. Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods and services are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected in as far as this ground is concerned.

This finding would still be valid even if the earlier trade marks were to be considered as enjoying a high degree of distinctiveness. Given that the dissimilarity of the goods and services cannot be overcome by the highly distinctive character of the earlier trade marks the evidence submitted by the opponent in this respect does not alter the outcome reached above.

The Opposition Division will now examine the ground of 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 of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08, & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. Reputation of the earlier trade mark

According to the opponent, the earlier trade marks (hereinafter ‘HERO’-marks) have a reputation in the European Union.

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

In the present case the contested trade mark was filed on 24/12/2015. Therefore, the opponent was required to prove that the trade marks on which the opposition is based have acquired a reputation in the European Union prior to that date. The evidence must also show that the reputation was acquired for the goods and services for which the opponent has claimed reputation, namely the goods and services mentioned previously in this decision in the section a) under Likelihood of confusion - Article 8(1)(b) EUTMR.

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

On 28/02/2017 the opponent submitted the following evidence:

• Exhibit 1: copy of a – according to the opponent - ‘Bloomberg’-article by Leslie Picker dated 26/06/2014. The article refers the opponent’s company market shares but there is no mention to any of the earlier ‘HERO’-trade marks in particular. The article does mention the amount of sales of GoPro’s waterproof cameras in 2013.

• Exhibit 2: copies of press articles from newspapers like The Independent, The Telegraph, El País, Le Monde (together with circulation figures) and clippings from specialized magazines, some undated and some showing dates between 2012 and 2015. The submitted evidence shows a variety of articles and publicity about GoPro and its cameras. In the articles the cameras are referred to as ‘cameras GoPro’ or ‘GoPro’ in combination with the depiction of cameras showing the elements HERO2, HERO+, HERO3, HERO3+, HERO4 or HERO4 SILVER.

• Exhibit 3: Excerpts from the opponent’s web pages www.gopro.com, Facebook and Instagram accounts and screenshots from YouTube website showing videos made by GoPro cameras in relation to sports. The emphasis on social media lies on the company’s name GoPro.

• Exhibit 4: copy of an article from Market Realist by Parker Thomas dated 10/08/2015 referring to GoPro’s market shares and earnings trend globally stating that “GoPro introduced HERO4 and HERO + LCD to retain old consumers and attract new consumers. These products helped its overall revenue rise from $ 363.1 million in 1Q2015 to $ 419,9 million in 2Q2015”.

• Exhibit 5: a print-out showing statistics on the worldwide ranking of and visits to the opponent’s website ‘gopro.com’ between January 2016 and October 2016 and their location. Moreover, it shows the top 5 keywords in the search engine, namely ‘gopro karma’, ‘gopro’, ‘gopro hero 5’, ‘gopro hero 4’, ‘gopro studio’.

• Exhibit 6: the evidence in this exhibit contains, according to the opponent, a summary detail of 47 adverts in publications and newspapers throughout the United Kingdom.

• Exhibit 7: undated visitor statistics showing 190.669 visitors to an exhibition named ‘photokina’, supported by some screenshots of videos from YouTube on the ‘GoPro Booth – photokina 2014’ and ‘Photokina 2016’ in which video a ‘HERO 5’ camera is shown at minute 2.15. A copy of a press article from 22/09/2014 states that “The Photokina 2014 trade shows, which ended in Cologne, Germany, pulled in around 185.000 visitors – matching the attendance of the previous event in 2012, say organisers”.

The evidence also contains a listing of exhibitions throughout the UK between 2011 and 2104, with any further reference as to what was exhibited and the amount of visitors.

• Exhibit 8: copy of the opponent’s 2014 annual report showing global revenues for the years 2010 – 2014 as follows:

Year	Gross Revenue US$
2010	64,000,000
2011	234,000,000
2012	526,000,000
2013	986,000,000
2014	1,394,000,000

Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade marks enjoy a reputation in the European Union within the meaning of Article 8(5) EUTMR.

Firstly, by looking at the substantial amount of evidence it is apparent that the opponent’s market share, newspaper articles, use on social media and exhibitions prominently refer to the sign ‘GoPro’. Furthermore, the evidence shows some use of the element ‘HERO’ in conjunction with the element ‘GoPro’.

Use of a trade mark in a form other than that in which it is registered, or in conjunction with other marks, may lead to an alteration of the distinctive character of the mark under assessment. Cases may arise where the distinctive character is sufficiently altered that the reputation gained by the altered form of the mark does not exist also for the version of the mark as it appears on the register. However, the mere fact that a mark is used in an altered form does not prevent the registered form of the mark from gaining a reputation. The legal assessment of reputation remains the same, namely it is an assessment of whether or not the registered form of the mark has become known by a significant part of the public for the products or services covered by that trade mark.

In principle, it cannot be ruled out that a trade mark may acquire repute or enhanced distinctiveness even if only used alongside or as part of other marks. However, the evidence shows that the earlier trade marks ‘HERO’ were always used in such a way as to be completely subordinated to the term ‘GoPro’. The location of the trade marks in question is generally secondary, with ‘GoPro’ in a prominent position. The attention of the public will, therefore, be drawn to ‘GoPro’ and not to the ‘HERO’ element. Even though the actual presence of the opponent’s marks on the market can be inferred from the documents submitted, where it is clear that the sign ‘HERO’ is used in conjunction with cameras, the evidence submitted does not demonstrate sufficiently extensive use of the opponent’s marks neither on their own nor in combination with the element ‘GoPro’. In the absence of any evidence relating to the renown of ‘HERO’ per se (e.g. survey evidence), from the evidence adduced the Opposition Division cannot find that the element ‘HERO’, on its own, is reputed. Consequently, this element is unable to enjoy the recognition necessary to reach the threshold of reputation.

Evidently, this applies equally to the earlier marks ‘BE A HERO’ and ‘HEROCAST’.

The evidence submitted is not supported by any statements from third parties and nor are there any documents such as opinion polls or market surveys. There are no invoices or other commercial documents either. Most of the information derives from the opponent itself. The gross revenues are not specified by product and the statistics on visitors to the opponent’s website, for example, may point to the existence of the brand, taking into account the top 5 of searched keywords, but do not give any further insight regarding the degree of market awareness of the brand, its extent of use or possible reputation.

Under these circumstances, the Opposition Division concludes that the opponent failed to prove that its trade marks have a reputation.

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 marks have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

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

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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

Cynthia DEN DEKKER

Ioana MOISESCU

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

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