OPPOSITION No B 2 800 186

Nature’s Way Products, LLC, 625 Challenger Drive, Green Bay, Wisconsin 54311, United States of America (opponent), represented by Kilburn & Strode LLP, Lacon London, 84 Theobalds Road, London, WC1X 8NL, United Kingdom (professional representative)

a g a i n s t

NaturaWay s.r.o., Horní 729, 700 30 Ostrava, Czech Republic (applicant), represented by Lejček & Associates, Slezská 169/10, 120 00 Praha 2, Czech Republic (professional representative).

On 27/08/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 800 186 is partially upheld, namely for the following contested goods and services:

Class 3: Aloe vera preparations for cosmetic purposes; cleaning preparations; scouring solutions; oils for cleaning purposes; deodorants for human beings or for animals; shampoos for pets; disinfectant soap; essential oils; cosmetics and cosmetic preparations; creams for leather; cleansing creams; face creams for cosmetic use; face creams for cosmetic use; polishing creams; aromatherapy creams; barrier creams; exfoliant creams; cosmetic creams; non-medicated creams; non-medicated toiletries; sanitary preparations being toiletries; douching preparations for personal sanitary or deodorant purposes [toiletries]; perfumed body lotions [toilet preparations]; massage gels other than for medical purposes; cosmetic masks; body masks; hair mascara; soaps; non-medicated soaps; laundry preparations; shampoo; hair tonic; dentifrices.

Class 44: Aromatherapy services; nutrition counseling; medical counseling; pharmacy advice; nutritional advice; advisory services relating to pharmaceuticals; beauty consultancy; consultancy services relating to cosmetics; professional consultancy relating to nutrition; health spa services; massage; beauty salons.

2. European Union trade mark application No 15 672 116 is rejected for all the above goods and services. 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As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 15 672 116 , namely against all the goods and services in Classes 3, 5 and 44. The opposition is based on, inter alia, European Union trade mark registration No 11 551 785 ‘NATURE’S WAY’. The opponent invoked Article 8(1)(b) EUTMR.

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 European Union trade mark registration No 11 551 785 ‘NATURE’S WAY’.

1. The goods and services

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

Class 3: Cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices; toiletries, face cleansers, skin toners, exfoliators, moisturisers, hand cream, body lotions, body washes, body scrubs, deodorants, massage oils, essential oils, fragrances, talcum powder, shampoo, conditioner, sun skincare and tanning preparations, nail care preparations.

Class 5: Medicinal preparations; vitamins, minerals; mineral preparations and supplements, medicinal food supplements, proteins, extracts and herbs for medicinal purposes; diet aids and medicinal and human conditioning supplements in all forms including tablets, liquids, capsules and powders; pharmaceutical preparations and substances; medical topical preparations; herbal preparations and supplements; pro biotic preparations; nutritional supplements; medicated confectionery; slimming preparations for medical use; nutritional oils; fibre supplements; decongestants; herbal preparations; preparations and substances prepared from herbs, plants and flowers; flower remedies and flower essences; essential fatty acids.

Class 35: Presentation of goods and services on the Internet; marketing; retail services including retail sales via retail stores and wholesalers, via mail order and via the Internet of health products and herbal treatment products.

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

Class 3: Aloe vera preparations for cosmetic purposes; cleaning preparations; scouring solutions; oils for cleaning purposes; deodorants for human beings or for animals; shampoos for pets; disinfectant soap; essential oils; cosmetics and cosmetic preparations; creams for leather; cleansing creams; face creams for cosmetic use; face creams for cosmetic use; polishing creams; aromatherapy creams; barrier creams; exfoliant creams; cosmetic creams; non-medicated creams; non-medicated toiletries; sanitary preparations being toiletries; douching preparations for personal sanitary or deodorant purposes [toiletries]; perfumed body lotions [toilet preparations]; massage gels other than for medical purposes; cosmetic masks; body masks; hair mascara; soaps; non-medicated soaps; laundry preparations; shampoo; hair tonic; dentifrices.

Class 44: Aromatherapy services; nutrition counseling; medical counseling; pharmacy advice; nutritional advice; advisory services relating to pharmaceuticals; beauty consultancy; consultancy services relating to cosmetics; professional consultancy relating to nutrition; health spa services; massage; plant nurseries; beauty salons.

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 opponent’s list of goods and services, indicates that the specific goods and services 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).

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 3

Soaps, dentifrices, essential oils, shampoo and scouring solutions are identically contained in both lists of goods (including synonyms).

The contested non-medicated toiletries; sanitary preparations being toiletries; douching preparations for personal sanitary or deodorant purposes [toiletries]; perfumed body lotions [toilet preparations] are included in the broad category of the opponent’s toiletries. Therefore, they are identical.

The contested aloe vera preparations for cosmetic purposes; deodorants for human beings or for animals; cosmetics and cosmetic preparations; cleansing creams; face creams for cosmetic use (listed twice); aromatherapy creams; barrier creams; exfoliant creams; cosmetic creams; non-medicated creams; massage gels other than for medical purposes; body masks; cosmetic masks; hair mascara; hair tonic are included in the broad category of the opponent’s cosmetics. Therefore, they are identical.

The contested shampoos for pets are included in the broad category of the opponent’s shampoo. Therefore, they are identical.

Soap is a cleaning or emulsifying agent made by reacting animal or vegetable fats or oils with potassium or sodium hydroxide. Soaps often contain colouring matter and perfume and act by emulsifying grease and lowering the surface tension of water, so that it more readily penetrates open materials such as textiles.

It follows from the above that the contested disinfectant soap; non-medicated soaps are included in the broad category of the opponent’s soaps. Therefore, they are identical.

The contested cleaning preparations overlap with the opponent’s soaps. Therefore, they are identical.

The contested laundry preparations include, as a broader category, the opponent’s soaps. Since the Office cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested oils for cleaning purposes are similar to a high degree to the opponent’s soaps because they coincide in purpose, method of use and distribution channels and they target the same consumers. Furthermore, they are in competition.

The contested polishing creams are used to make a product smooth and shiny by rubbing. The contested creams for leather are used to care for, protect or give leather a smooth and shiny surface when rubbed in. These goods are similar to the opponent’s soaps because they are agents used for cleaning. To that extent, they have similar purposes. Furthermore, they target the same consumers and are sold in the same retail outlets and in the same sections in supermarkets.

Contested services in Class 44

As a preliminary remark, it should be noted that, even if, by their nature, services are generally dissimilar to goods, they can, however, be complementary. Moreover, services can have the same purpose and thus be in competition with goods. It follows that under certain circumstances similarity between services and goods can be found. This applies to the present case.

The contested health spa services, beauty consultancy, beauty salons, massage, are all services provided in relation to the maintenance of hygiene, wellbeing and beauty of the body. They are, or can be, provided by establishments such as wellness and beauty centres, which offer, inter alia, massages and hair, facial and body treatments by means of the application of cosmetics, oils, shampoos, etc. They are similar to the opponent’s cosmetics, since they may have the same purpose (to improve people’s appearance and hygiene) and target the same public. Furthermore, the distribution channels of the products may be the same, as the establishments offering the service may also offer beauty products for sale (26/02/2015, T‑388/13, SAMSARA, EU:T:2015:118, § 25-29). Moreover, they are complementary to each other, as it may be necessary to use the opponent’s products to perform the contested services and vice versa; therefore, the public may expect treatment with these products (26/02/2015, T‑388/13, SAMSARA, EU:T:2015:118, § 31).

The contested advisory services relating to pharmaceuticals; pharmacy advice and medical counseling are similar to a low degree to the opponent’s pharmaceutical preparations and substances, since these goods and services can coincide in distribution channels and end users. Moreover, they are complementary.

The contested consultancy services relating to cosmetics are similar to a low degree to the opponent’s cosmetics, because they are complementary and they coincide in distribution channels and end users.

The contested aromatherapy services are similar to a low degree to the opponent’s essential oils, since these goods and services can have the same distribution channels and end users. Moreover, they are complementary.

The contested nutrition counseling; nutritional advice; professional consultancy relating to nutrition are similar to a low degree to the opponent’s nutritional supplements to the extent that these goods and services can have the same distribution channels and end users. Moreover, they are complementary.

The contested plant nurseries are dissimilar to all the opponent’s goods and services in Classes 3, 5 and 35, since they have nothing in common. They clearly have different natures, methods of use and commercial origins, and, as they satisfy different needs, they target different publics. Furthermore, they are neither complementary nor in competition. Therefore, consumers would not expect the opponent’s goods and services to have the same origin as the contested services.

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 and services found to be identical or similar (to varying degrees) are directed at the public at large and business customers with specific professional knowledge or expertise, especially regarding pharmaceutical goods and health-related services in Classes 5 and 44.

It is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, the relevant public’s degree of attention is relatively high (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36). In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health.

Consequently the degree of attention is considered to vary from average to high depending on the nature of the goods and services. For example, the degree of attention will be average regarding cosmetics in Class 3, while it will be high regarding pharmaceutical goods and related services in Classes 5 and 44.

3. The signs

NATURE’S WAY
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 unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Since both signs are composed of English words, for reasons of procedural economy the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark is a word mark, ‘NATURE’S WAY’.

Bearing in mind that the relevant goods and services are related to cosmetics, health and beauty care, the first word, ‘NATURE’, will be perceived by the relevant public as referring to something that comes from nature. It is thus weak for these goods and services, as it simply indicates that they are composed of natural ingredients, have had a minimum of processing or preservative treatment or use natural methods. The word ‘WAY’ is likely to be perceived as meaning ‘path, passage’ or ‘a course of action’. The letter ‘S’ and the apostrophe are a normal English possessive marker. Considered as a whole, ‘NATURE’S WAY’ will be understood as ‘the path of nature’ or ‘nature’s course of action’. It is therefore allusive to a characteristic of the relevant goods and services, referring to their natural origin. It is consequently distinctive to a low degree.

The contested sign is a figurative mark composed of the word elements ‘NATURAWAY’ and ‘HCY VITALITY’, the first one being placed in the top of the sign in large upper case letters, while the second is underneath in a much smaller typeface. The sign also contains a figurative element consisting of two leaves. The second leaf and the letters ‘NATURA’ are depicted in green, while the other parts of the sign are in grey.

Although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details, the fact remains that, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). Consequently, while the rule is that marks are perceived as a whole, the exception to that rule is that, under certain circumstances, consumers could break them down into smaller parts.

In the present case, the verbal element ‘NATURAWAY’ of the contested sign will be dissected, since both ‘NATURA’ and ‘WAY’ are meaningful for the relevant public. Moreover, the two components ‘NATURA’ and ‘WAY’ are depicted in different colours, as described above, which creates a de facto separation between the words. The word ‘NATURA’ is a Latin word, from which the English word ‘NATURE’ is derived. It thus conveys the same meaning to the relevant public as the word ‘NATURE’ in the earlier mark as detailed above, and it is distinctive to a low degree for the relevant goods and services. The same applies to the word ‘WAY’, identically contained in both signs. Considered as a whole, the element ‘NATURAWAY’ will be understood as ‘natural path’ or ‘natural course of action’, and is, therefore, distinctive to a low degree for the relevant goods and services.

The word ‘VITALITY’ refers to ‘the property by which the living can be distinguished from the non-living’. It is therefore also distinctive to a low degree for the relevant goods and services, as it alludes to their characteristics.

The element ‘HCY’, the applicant asserts, is the abbreviation for ‘homocystein’, which is a non-proteinogenic α-amino acid. However, it is likely that the general public will not perceive this specific meaning. It is therefore distinctive for the relevant goods and services for the general public, while it is distinctive to a low degree for the professional part of the public, since it alludes to the fact that the goods and related services contain such a molecule. In any case, considering the size and position of the two elements ‘HCY VITALITY’, they are of secondary importance in the contested sign compared with the figurative element and the word element ‘NATURAWAY’. This is also due to the use of the colour green in these two main elements, while the others are only in grey.

The figurative element consisting of two leaves, like the use of the colour green, will be perceived as a reference to nature and to the natural origin of the goods and services. It merely stresses the concept of nature conveyed by the word ‘NATURA’ and it is evocative of the characteristics of the goods and services as detailed above. It is therefore distinctive to only a low degree. In addition, 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). It follows that, contrary to the applicant’s claim, the figurative element is not dominant in the contested sign.

The earlier mark being a word mark, it has no element that could be considered clearly more dominant than other elements. In the contested sign, the element ‘NATURAWAY’ is the most dominant, as it is the most eye-catching.

Visually, the signs coincide in the strings of letters ‘NATUR’ and ‘WAY’, representing 8 out of 10 letters of the earlier mark and 8 out of 9 letters of the contested sign’s dominant element. Considering that these elements differ in length by only one letter, they give the overall impression of having the same length.

The signs differ in the substitution of the letter ‘E’ in the earlier mark with ‘A’ in the contested sign. They also differ in the additional letter ‘S’ and the apostrophe in the earlier mark as well as in the word elements ‘HYC VITALITY’ and the graphic depiction of the contested sign (including its figurative element and colours), which have no counterparts in the other signs. However, the impact of these elements is low for the reasons detailed above.

Moreover, the fact that the coinciding letters are at the beginning of the signs is also particularly relevant, since 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.

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

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘NATUR’ and ‘WAY’, present identically in both signs. The pronunciation differs in the sound of the letters ‘E’ and ‘S’ in the earlier sign, and ‘A’ and ‘HYC VITALITY’ in the contested sign, which have no counterparts in the other sign.

However, in view of their weak distinctive character (for at least part of the public) and smaller size, the word elements ‘HYC VITALITY’ will not be pronounced (07/02/2013, T‑50/12, Metro Kids Company, EU:T:2013:68, § 42; 30/11/2011, T‑477/10, SEc Sports Equipment, EU:T:2011:707, § 55; 16/09/2009, T‑400/06, zerorh+, EU:T:2009:331, § 58; 18/09/2012, T‑460/11, Burger, EU:T:2012:432, § 48, to that effect) and therefore they do not have any impact from the aural point of view.

Therefore, and considering that the differing components are placed in the middle of the word elements, the signs are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both the elements ‘NATURE’S WAY’ and ‘NATURAWAY’ will be perceived as referring to a natural course of action or path, and the signs differ in their secondary word elements, as detailed above. Moreover, the figurative element and the colour green in the contested sign merely reinforce the reference to nature.

Taking into account the weak distinctive character of the coinciding elements, the signs are conceptually similar to an average degree.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

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. Considering what has been stated above in section c) of this decision, the distinctiveness of the earlier mark must be seen as low for all the goods and services in question.

5. Global assessment, other arguments and conclusion

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.

Account is 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). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

The goods and services are partly identical, partly similar (to varying degrees) and partly dissimilar. The degree of attention of the public varies from average to high depending on the nature of the goods and services. The earlier mark has a low level of distinctiveness.

Overall, the signs are visually, aurally and conceptually similar to an average degree, taking into account that they coincide in very similar word elements, that is, ‘NATURE’S WAY’ in the earlier mark and ‘NATURAWAY’ in the contested sign. The most notable differences between the signs are confined to secondary elements, as detailed in section c) of this decision. Consequently, these are insufficient to counteract the similarities between them and allow the consumer to safely distinguish between the signs.

As, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (13/12/2007, T‑134/06, Pagesjaunes.com, EU:T:2007:387; 16/03/2005, T‑112/03, Flexi Air, EU:T:2005:102) and having regard to the fact that the differences between the signs are not striking but secondary in comparison with their commonalities, the weak distinctive character of the earlier mark will not prevent confusion in the present case.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well founded on the basis of European Union trade mark registration No 11 551 785 ‘NATURE’S WAY’. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

In its observations, the applicant claims that both signs can coexist in the market and argues that, for this reason and following an agreement with the opponent, it deleted all goods in Class 5.

According to case-law, the possibility cannot be ruled out that the coexistence of two marks on a particular market might, together with other elements, contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public (03/09/2009, C‑498/07P, La Española, EU:C:2013:302, § 82). In certain cases, the coexistence of earlier marks in the market could reduce the likelihood of confusion that the Office finds between two conflicting marks (11/05/2005, T‑31/03, Grupo Sada, EU:T:2005:169, § 86). However, that possibility can be taken into consideration only if, at the very least, during the proceedings before the EUIPO concerning relative grounds for refusal, the applicant for the European Union trade mark duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the earlier marks upon which it relies and the intervener’s earlier mark on which the opposition is based, and provided that the earlier marks concerned and the marks at issue are identical (11/05/2005, T‑31/03, Grupo Sada, EU:T:2005:169, § 86).

In this regard it should be noted that formal coexistence in national or Union registries of certain marks is not per se particularly relevant. It should also be proved that they coexist in the market, which could actually indicate that consumers are used to seeing the marks without confusing them. Last but not least, it is important to note that the Office is in principle restricted in its examination to the trade marks in conflict.

Only under special circumstances may the Opposition Division consider evidence of the coexistence of other marks in the market (and possibly in the register) at national/Union level as an indication of ‘dilution’ of the distinctive character of the opponent’s mark that might be contrary to an assumption of likelihood of confusion.

This has to be assessed on a case-by-case basis, and such an indicative value should be treated with caution as there may be different reasons as to why similar signs coexist, e.g. different legal or factual situations in the past, or prior rights agreements between the parties involved.

Therefore, in the absence of convincing arguments and evidence thereof, this argument of the applicant must be rejected as unfounded.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical and similar to different degrees to those of the earlier trade mark. Given the major similarities between the signs, the opposition is also successful insofar as the services that are similar to a low degree are concerned.

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

The opponent has also based its opposition on earlier European Union trade mark No 11 551 868 for some of the goods and services for which it is registered, namely the goods and services in Classes 3, 5, 29 and 35.

Since this mark covers a narrower scope of goods in Class 3 and the same scope of goods and services in Classes 5 and 35, and considering that the additional nutritional oils in Class 29 are clearly different from the services in Class 44 that are dissimilar to the goods and services of the earlier mark already considered, namely plant nurseries, the outcome cannot be different with respect to services for which the opposition has already been rejected. The contested plant nurseries and the opponent’s nutritional oils differ in nature, methods of use and commercial origins, and, as they satisfy different needs, they target different publics. Furthermore, they are neither complementary nor in competition. Therefore, no likelihood of confusion exists with respect to those services.

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 and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Marine DARTEYRE Julie, Marie-Charlotte HAMEL Cristina CRESPO MOLTÓ

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.