OPPOSITION No B 2 708 223

Proxima Systems S.L., Edificio CEEI - Módulo 1.14, Parque Tecnologico de Boecillo, 47151 Valladolid, Spain (opponent), represented by Clarke, Modet y Cía. S.L., Rambla de Méndez Núñez, Nº 21-23, 5º A-B, 03002 Alicante, Spain (professional representative)

a g a i n s t

IPro Inc., Suite 802-591 930 Tahoe Blvd, 89451 Incline Village, United States of America (applicant), represented by Katarzyna Binder-Sony, First Floor, 3 More London Riverside, SE1 2RE London, United Kingdom (professional representative).

On 11/07/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 708 223 is partially upheld, namely for the following contested goods:

Class 9: Game software; Electronic game software; Video game software; Computer game software for personal computers and home video game consoles; Computer game software for gaming machines including slot machines; Gaming software that generates or displays wager outcomes of gaming machines; Computer software and firmware for games of chance on any computerized platform, including dedicated gaming consoles, video based slot machines, and reel based slot machines.

2. European Union trade mark application No 15 042 609 is rejected for all the above goods. It may proceed for the remaining services.

3. Each party bears its own costs.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 15 042 609 ‘IPRO’. The opposition is based on Spanish trade mark registration No 2 829 649 . The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade mark on which the opposition is based, that is, Spanish trade mark registration No 2 829 649.

The date of filing of the contested application is 27/01/2016. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in Spain from 27/01/2011 to 26/01/2016 inclusive.

The request was submitted in due time and is admissible given that the earlier trade mark was registered more than five years prior to the relevant date mentioned above.

Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based, namely the following:

Class 9: Measuring and control apparatus and instruments; Apparatus for regulating or controlling electricity; Apparatus for the recording, transmission or reproduction of sound or images; data processing equipment, computers.

According to Article 10(3) EUTMDR (former Rule 22(3) EUTMIR, in force before 01/10/2017), the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 13/04/2017, in accordance with Article 10(2) EUTMDR (former Rule 22(2) EUTMIR, in force before 01/10/2017), the Office gave the opponent until 18/06/2017 to submit evidence of use of the earlier trade mark. On 13/06/2017 the opponent requested an extension for submitting the required documents. The time limit was extended by the Office until 18/08/2017. On 10/08/2017, within the time limit, the opponent submitted evidence of use.

As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data.

The evidence to be taken into account is the following:

ANNEX 1:

Four print-outs from the Internet (i.e. www.proximasystems.net), copies of two pages from a catalogue and three copies of invoices. The internet print-outs are mainly in English and partly in Spanish and describe some characteristics of the products offered under the marks ‘Iprox Industrial’, ‘Iprox nano’ and ‘Iprox Lite’. They are dated 20/06/2013 and contain the images of the earlier mark, for instance and . The copies from a catalogue are in English and describe some characteristics of the products offered under the marks ‘Iprox Industrial’, ‘Iprox nano’ and ‘Iprox Lite’. They are undated and contain the image of the earlier mark. According to the description ‘Iprox Industrial provides total control and security for any machine or industrial process even from thousands of kilometres away. Iprox range or products makes it possible to monitor critical parameters such as temperature, flow, voltage, intensity, level, etc. In case that any of the variables reaches out of its nominal range the personnel responsible for the installation receives a technical alert vial SMS or email’. All invoices come from different years within the relevant period. The invoices concern goods sold under the mark ‘Iprox Industrial’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 2:

Four print-outs from the Internet (i.e. www.proximasystems.net), copies of two pages from a catalogue and five copies of invoices. The print-outs from the website and copies of two pages from a catalogue are the same as in Annex 1. According to the description ‘Iprox Lite provides total control and security for any machine or industrial process even from thousands of kilometres away. Iprox range or products makes it possible to monitor critical parameters such as temperature, flow, voltage, intensity, level, etc. In case that any of the variables reaches out of its nominal range the personnel responsible for the installation receives a technical alert vial SMS or email’. All invoices are dated within the relevant period, except for one invoice of 26/05/2017, and they come from different years. The invoices concern goods sold under the mark ‘Iprox Lite’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 3:

Four print-outs from the Internet (www.proximasystems.net), copies of two pages from a catalogue and seven copies of invoices. The print-outs from the website and copies of two pages from a catalogue are the same as in Annex 1. According to the description ‘Iprox nano provides total control and security for any machine or industrial process even from thousands of kilometres away. Iprox range or products makes it possible to monitor critical parameters such as temperature, flow, voltage, intensity, level, etc. In case that any of the variables reaches out of its nominal range the personnel responsible for the installation receives a technical alert vial SMS or email’. All invoices come from different years within the relevant period. The invoices concern goods sold under the mark ‘Iprox Lite’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 4:

Copies of three pages from a catalogue and five invoices. The copies from a catalogue are in English and describe some characteristics of the products offered under the mark ‘Iprox Pivot’. According to the description ‘IProx Pivot is the pivot irrigation automation and remote management tool that lets you manage your system from any computer, tablet or mobile telephone. Manage and programme the pumping and irrigation processes in a centralised, remote way for all your sites from anywhere in the world. IProx Pivot provides charts and reports on all your land and sends technical and intrusion alerts’. They are undated and contain the image of the earlier mark, namely and . The invoices are dated within the relevant period, except for three invoices of 12/08/2016, 14/11/2016 and 28/10/2016. All the invoices concern goods sold under the mark ‘Iprox Pivot’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 5:

Copies of three pages from a catalogue and five invoices. The copies from a catalogue are in English and describe some characteristics of the products offered under the mark ‘Iprox Irrigation’. According to the description ‘IProx Irrigation is a remote management and automation tool for pumps, solid set and drip irrigation systems and pivots. IProx makes it possible to remotely operate and automate all elements of the system using a PC, tablet or smartphone connected to the Internet. Also, you can manage all your irrigation sites from just one place: your mobile phone ,wherever you are in the world. IProx irrigation alerts, charts and reports will help you making informed decisions for the maximum productivity of your operations. Are you worried about burglars? No problem! You will get an alert whenever an unauthorised person enters your premises’. They are undated and contain the image of the earlier mark, namely and . The invoices are dated within the relevant period, except for three invoices that are dated 01/04/2017, 15/05/2017 and 19/05/2016. All the invoices concern goods sold under the mark ‘Iprox Irrigation’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 6:

Copy of a page from a catalogue and five invoices. The copy from a catalogue is in Spanish and describes some characteristics of the products offered under the mark ‘Iprox Compact’. The description contains solely some technical details. It is not dated and contains the image of the earlier mark, namely and . The invoices are dated beyond the relevant period, that is, 03/10/2016 and 07/07/2017. All the invoices concern goods sold under the marks ‘Iprox Compact’ and ‘Iprox Cloud’. They are in Spanish and are addressed to different clients in Spain. The prices are given in Euro.

ANNEX 7:

Three printouts from the Internet (i.e. www.mailchimp.com) showing promotional campaigns with regard to products offered by the opponent under the mark ‘IProx’. They are undated, contain the earlier mark, namely and , and a brief description of the products. These printouts are in Spanish, but an English translation thereof is enclosed.

Assessment of the evidence

The applicant argues that the opponent did not submit translations of some of the evidence of use and that therefore this evidence should not be taken into consideration. However, the opponent is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (Article 10(6) EUTMDR, former Rule 22(6) EUTMIR in force before 01/10/2017). Taking into account the nature of the documents that have not been translated and are considered relevant for the present proceedings, namely, invoices, and their self-explanatory character, the Opposition Division considers that there is no need to request a translation.

Furthermore, it is possible to link the trade mark appearing in these invoices with other materials describing the goods in question.

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145; 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

The evidence concerning proof of use might include the following documents: invoices, price lists, affidavits, catalogues, surveys, turnover and sales figures, press cuttings, samples of products/packaging, advertisements, offers made to potential clients and other documents confirming that the mark has been genuinely used on the market. The opponent submitted only some of the aforementioned documents, such as promotional materials and invoices.

Place of use

The various print-outs from the Internet, copies of pages from a leaflet/a catalogue and several copies of invoices, show that the place of use was Spain. This can be inferred from the references and addresses of clients in Spain (Exhibits 1-6), languages used (e.g. Exhibits 1-7) and the currency used, that is, Euro (Exhibits 1-6). It should be explained that some of the copies of pages from a leaflet/a catalogue are in English. However, the goods offered by the opponent are highly specialised and it is common nowadays to distribute leaflets or catalogues in English to clients, even if their mother tongue is not English. Therefore, the evidence relates to the relevant territory.

Time of use

Evidence referring to use made outside the relevant timeframe is disregarded unless it contains conclusive indirect proof that the mark must have been put to genuine use during the relevant period of time as well. Events subsequent to the relevant time period may make it possible to confirm or better assess the extent to which the earlier mark was used during the relevant time period and the real intentions of the EUTM proprietor at that time (27/01/2004, C 259/02, Laboratoire de la mer, EU:C:2004:50).

In the present case, the evidence referring to use outside the relevant period, that is, some of the invoices, and the other undated documents, confirms use of the opponent’s mark within the relevant period. This is because these documents show a certain continuity that covers the relevant period.

Extent of use

The documents filed, namely the invoices showing the number of goods sold under the brand ‘IPROX’, within the relevant period (Exhibits 1-6), although not particularly exhaustive, they still provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use.

It should be noted that the goods offered under the brand ‘IPROX’ are expensive. Low turnover and sales, in absolute terms, of a medium- or low-priced product might support the conclusion that use of the trade mark in question is not genuine. However, with regard to expensive goods or an exclusive market, low turnover figures can be sufficient (decision of 04/09/2007, R 35/2007-2, Dinky, § 22). It is, therefore, always necessary to take the characteristics of the market in question into account (judgment of 08/07/2004, T-334/01, Hipoviton, EU:T:2004:223, § 51).

The assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa (judgment of 08/07/2004, T-203/02, Vitafruit, EU:T:2004:225, § 42).

Nature of use

In the context of Article 10(3) EUTMDR (former Rule 22(3) EUTMIR, in force before 01/10/2017), the expression ‘nature of use’ includes evidence of use of the sign in accordance with its function, of use of the mark as registered, or of a variation thereof according to Article 18(1), second subparagraph, point (a) EUTMR, and of its use for the goods and services for which it is registered.

The evidence listed above demonstrates that the earlier mark was used in such a way as to establish a clear link between the goods and the undertaking responsible for their marketing. Therefore, the Opposition Division considers that the evidence shows use of the sign as a trade mark.

The applicant argues that the earlier trade mark has been used with some alternations. As can be deduced form the evidences, the mark in question has been used essentially as: , , , and (examples from a leaflet/a catalogue) or and (example from an invoice).

According to Article 18(1), second subparagraph, point (a), EUTMR, the following will also constitute use within the meaning of paragraph 1: use of the European Union trade mark in a form differing in elements that do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor. When examining the use of an earlier registration for the purposes of Article 47(2) and (3) EUTMR, Article 18 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

In the present case, the earlier mark is a figurative mark composed of five letters of which the first two are depicted in uppercase characters. Minor changes or additions to figurative signs do not normally affect the distinctive character of a mark. The opponent used its earlier mark with some additional verbal elements of a descriptive nature such as ‘Industrial’, ‘Lite’ or ‘nano’. Furthermore, in some cases, these additional elements were depicted in smaller letters and always put as second verbal elements. Regarding the figurative elements used next to the earlier right, they do not overshadow the earlier mark which is clearly visible and perceptible. The letters ‘IProx’ always create the initial part in every single example of depiction as represented in the invoices and in other documents. Therefore, the earlier trade mark was properly used in the market.

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

However, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade marks, namely with regard to computers.

According to Article 47(2) EUTMR, if the earlier trade mark has been used in relation to only some of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of those goods or services.

In the present case, the evidence shows genuine use of the trade mark for the following goods:

Class 9: Measuring and control apparatus and instruments; Apparatus for regulating or controlling electricity; Apparatus for the recording, transmission or reproduction of sound or images; data processing equipment.

Therefore, the Opposition Division will only consider the abovementioned goods in its further examination of the opposition.

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 on which the opposition is based are the following:

Class 9: Measuring and control apparatus and instruments; Apparatus for regulating or controlling electricity; Apparatus for the recording, transmission or reproduction of sound or images; data processing equipment.

The contested goods and services are the following:

Class 9: Game software; Electronic game software; Video game software; Computer game software for personal computers and home video game consoles; Computer game software for gaming machines including slot machines; Gaming software that generates or displays wager outcomes of gaming machines; Computer software and firmware for games of chance on any computerized platform, including dedicated gaming consoles, video based slot machines, and reel based slot machines.

Class 41: Electronic games services provided by means of the internet; Entertainment services, namely, providing online video games; Entertainment services, namely, providing temporary use of non-downloadable computer and video games; Entertainment services, namely, providing games of chance via the Internet; Providing a website featuring non-downloadable game software; Providing temporary use of non-downloadable game software; Entertainment services in the nature of fantasy sports leagues.

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

The term ‘including’, used in the applicant’s list of goods, 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).

However, the term ‘namely’, used in the applicant’s list of services to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the services 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 Class 9

The contested game software; electronic game software; video game software; computer game software for personal computers and home video game consoles; computer game software for gaming machines including slot machines; gaming software that generates or displays wager outcomes of gaming machines; computer software and firmware for games of chance on any computerized platform, including dedicated gaming consoles, video based slot machines, and reel based slot machines are similar to the opponent’s data processing equipment. They usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

Contested services in Class 41

The contested electronic games services provided by means of the internet; entertainment services, namely, providing online video games; entertainment services, namely, providing temporary use of non-downloadable computer and video games; entertainment services, namely, providing games of chance via the internet; providing a website featuring non-downloadable game software; providing temporary use of non-downloadable game software; entertainment services in the nature of fantasy sports leagues are dissimilar to the opponent’s goods. It should be noted that goods are tangible, whereas services are intangible. Therefore, the nature of the goods and services in question is different. They differ also in their purpose and method of use. Furthermore, they usually differ in their distribution channels, sales outlets, producers and consumers. They are not in competition.

2. 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 similar are directed at the public at large. The degree of attention is considered to be average.

3. The signs

	IPRO
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 is a figurative mark composed of the word ‘IProx’ which is depicted in bold, rather standard letters. The first two characters are written in upper case characters, whereas the last three ones are depicted in lower case letters.

The contested sign is a word mark as indicated above. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant whether they are presented in upper or lower case letters.

The word ‘IPROX’ of the earlier mark has no direct meaning for the relevant public and is, therefore, distinctive.

The word ‘IPRO’ of the contested sign is a fanciful term and has no direct meaning for the relevant public. Therefore, it is distinctive.

Furthermore, irrespective of the above said, it is also likely that some part of the public will perceive the element ‘pro’, present in both signs, as a reference to the Spanish word ‘promoción’ or ‘profesional’, meaning an attempt to make a product popular or targeted at professionals. For this part of the public the distinctiveness of the signs is reduced. It is, however, not excluded that, some part of the relevant public will perceive the component ‘pro’ as having no particular meaning.

The stylisation of the letters in the earlier mark is banal and will go most likely unnoticed. The same reasoning concerns the fact that the first two letters of the earlier mark are in uppercase font, whereas the last three are in lowercase characters.

The Opposition Division will therefore focus its comparison on this part of the public who will not dissect the verbal element ‘pro’ in the signs under comparison what is the best-case scenario for the opponent.

Eventually, it should be noted that 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, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the signs coincide in their ‘IPRO’. However, they differ in the letter ‘X’ which is the last letter of the earlier mark. The signs differ also in the stylisation of the letters of the earlier mark.

Therefore, the signs are visually highly similar.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛IPRO’, present identically in both signs. The pronunciation differs in the sound of the last letter in the earlier mark, namely ‘X’, which has no counterpart in the contested mark.

Considering the above, the signs are aurally highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

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

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.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C 342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C 251/95, Sabèl, EU:C:1997:528, § 22).

Such a global assessment of 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).

The goods at issue were found to be similar and the contested services to be dissimilar to the opponent’s goods. The goods are targeted at the public at large whose degree of attention is average. The signs are visually and aurally highly similar. The conceptual aspect does not influence the assessment of the similarity of the signs.

The only difference between the signs concerns the last letter in the earlier mark, that is, ‘X’. The first four letters are the same, that is, ‘IPRO’.

Account should also be taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C 342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Therefore, in view of all the relevant factors in the present case and taking into account the principle of interdependence, it may be concluded that the likelihood that the public might confuse the signs with each other is very real.

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 Spanish trade mark registration No 2 829 649.

It follows from the above that the contested trade mark must be rejected for the goods found to be similar to those of the earlier trade mark.

The contested services 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 services cannot be successful.

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

Claudia ATTINÀ

Michal KRUK

André Gerd Günther BOSSE

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.