OPPOSITION No B 2 998 741

Stichting Escrow Beneluxmerken Vanilia, Burgemeester de Raadtsingel 31, 3311 JG, Dordrecht, Netherlands (opponent), represented by Chiever BV, Barbara Strozzilaan 201, 1083 HN, Amsterdam, Netherlands (professional representative)

a g a i n s t

Vanilla S.r.l., Via Valle d’Aosta, 50, 59100 Prato (PO), Italy (applicant), represented by Jessica Viganò, Via V. Monti, 8, 20123 Milano, Italy (professional representative).

On 16/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 998 741 is partially upheld, namely for the following contested goods and services:

Class 18: Trunks and travelling bags; umbrellas and parasols; walking sticks; keycases; vanity cases, not fitted; sport bags; chain mesh purses; purses; handbags; briefbags; umbrella covers; fur; card cases [notecases]; music cases; wallets; holdalls; attache cases; backpacks; roll bags; all-purpose carrying bags; multi-purpose purses; shoulder belts; straps for handbags; casual bags.

Class 25: Clothing for gymnastics; gowns; robes; bathrobes; clothing; bandanas [neckerchiefs]; berets; underwear; teddies [underclothing]; suspenders; footwear; training shoes; stockings; breeches; short-sleeve shirts; shirts; stuff jackets [clothing]; bodices [lingerie]; hats; top hats; hats (paper -) [clothing]; coats; hoods [clothing]; belts [clothing]; belts (money -) [clothing]; tights; shoulder wraps; detachable collars; camisoles; headgear; neck scarfs [mufflers]; suits; beachwear; masquerade costumes; neckties; swimming caps; headbands [clothing]; pocket squares; scarves; gabardines [clothing]; jackets [clothing]; garters; skirts; pinafore dresses; gloves [clothing]; ski gloves; mackintoshes; ready-to-wear clothing; knitwear [clothing]; jumpers; leg warmers; hosiery; sweaters; muffs [clothing]; pelerines; mantillas; sleep masks; skorts; boxer shorts; bathing drawers; waistcoats; trousers; parkas; pelisses; furs [clothing]; pyjamas; ponchos; sweaters; stocking suspenders; sock suspenders; brassieres; sandals; bath sandals; shoes; bath slippers; gymnastic shoes; beach shoes; football boots; training shoes; shawls; sashes for wear; briefs; topcoats; outerclothing; petticoats; slips [underclothing]; half-boots; boots; tee-shirts; turbans; combinations [clothing]; uniforms; veils [clothing]; visors [headwear]; wooden shoes; clothing of imitations of leather; leather clothing; scarves.

Class 35: Franchising, namely consultation and assistance in business management, organisation and promotion; wholesaling, retailing and sale via websites of leatherware, bags, travelling bags, umbrellas, walking sticks; wholesaling, retailing and website sales of clothing and clothing accessories, footwear, headgear.

2. European Union trade mark application No 16 182 404 is rejected for all the above goods and services. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 16 182 404 for the figurative mark . The opposition is based on, inter alia, Benelux trade mark registration No 801 507 for the figurative mark . 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 Benelux trade mark registration No 801 507 for the figurative mark .

a) The goods and services

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

Class 18: Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; suitcases and travel bags; umbrellas, umbrellas and canes; whips and saddlery.

Class 25: Clothing, footwear, headgear.

Class 35: Business-organizational and business-economic consultancy and other such business assistance in the commercialization and operation of retail businesses in the field of clothing and accessories; advertising, promotional and publicity services for retail businesses in the field of clothing and accessories; administrative services in drafting and concluding franchise agreements; business assistance with the sale of clothing and accessories.

The contested goods and services are the following:

Class 14: Jewels; time instruments; jewellery boxes and watch boxes; decorative articles [trinkets or jewellery] for personal use; identification bracelets [jewelry]; charms of precious metals; decorative jewellery; shoe jewellery; clothing ornaments of precious metals; key fobs [rings] coated with precious metal; key fobs, not of metal; jewelry findings; gold rings; gold plated rings; articles of jewellery with ornamental stones; jewellery made of semi-precious materials; jewellery made of precious stones; jewellery made of plastics; paste jewellery [costume jewelry (am)]; bracelets; chains [jewelry]; chains of precious metals; rope chain made of precious metal; jewellery rope chain for anklets; closures for necklaces; jewellery charms; jewelry findings; pendants; necklaces [jewellery]; wedding rings; tie bars; cuff links; gold jewellery; precious jewellery; medals; ornaments [jewellery, jewelry (am)]; imitation jewellery ornaments; jewel pendants; pins being jewelry; decorative brooches [jewellery]; bracelets for watches; clock cases; watch chains; watch clasps; pendants for watch chains; chronographs [watches]; buckles for watchstraps; clocks and parts therefor; watch pouches.

Class 18: Trunks and travelling bags; umbrellas and parasols; walking sticks; keycases; vanity cases, not fitted; sport bags; chain mesh purses; purses; handbags; briefbags; umbrella covers; fur; card cases [notecases]; music cases; wallets; holdalls; attache cases; backpacks; roll bags; all-purpose carrying bags; multi-purpose purses; shoulder belts; straps for handbags; casual bags.

Class 25: Clothing for gymnastics; gowns; robes; bathrobes; clothing; bandanas [neckerchiefs]; berets; underwear; teddies [underclothing]; suspenders; footwear; training shoes; stockings; breeches; short-sleeve shirts; shirts; stuff jackets [clothing]; bodices [lingerie]; hats; top hats; hats (paper -) [clothing]; coats; hoods [clothing]; belts [clothing]; belts (money -) [clothing]; tights; shoulder wraps; detachable collars; camisoles; headgear; neck scarfs [mufflers]; suits; beachwear; masquerade costumes; neckties; swimming caps; headbands [clothing]; pocket squares; scarves; linings (ready-made -) [parts of clothing]; gabardines [clothing]; jackets [clothing]; garters; skirts; pinafore dresses; gloves [clothing]; ski gloves; mackintoshes; ready-to-wear clothing; knitwear [clothing]; jumpers; leg warmers; hosiery; sweaters; muffs [clothing]; pelerines; mantillas; sleep masks; skorts; boxer shorts; bathing drawers; waistcoats; trousers; parkas; pelisses; furs [clothing]; pyjamas; ponchos; sweaters; stocking suspenders; sock suspenders; brassieres; sandals; bath sandals; shoes; bath slippers; gymnastic shoes; beach shoes; football boots; training shoes; shawls; sashes for wear; briefs; topcoats; outerclothing; dress shields; petticoats; slips [underclothing]; half-boots; boots; heels; tee-shirts; turbans; combinations [clothing]; uniforms; veils [clothing]; visors [headwear]; wooden shoes; clothing of imitations of leather; leather clothing; scarves.

Class 35: Franchising, namely consultation and assistance in business management, organisation and promotion; wholesaling, retailing and sale via websites of precious metals, jewellery, precious stones, horological and chronometric instruments, leatherware, bags, briefcases, document holders, pocket wallets, purses, backpacks, sacks, key cases, key rings, trunks and travelling bags, umbrellas and parasols, walking sticks; wholesaling, retailing and website sales of clothing and clothing accessories, footwear, headgear.

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.

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.

Contested goods in Class 14

The contested goods are various kinds of luxury goods, such as jewellery and watches, the main purposes of which are personal adornment and knowing the time, respectively. The opponent’s goods and services in Classes 18, 25 and 35 are mainly leather and imitations of leather, animal skins, luggage, umbrellas, canes, whips, animal apparel, clothing, footwear, headgear, business assistance, advertising and administrative services. The mere fact that some of the contested goods and some of the opponent’s goods and services are related to the fashion and lifestyle fields is not sufficient to find them complementary. They do not have the same natures, purposes or methods of use. Furthermore, they are not in competition, they may have different distribution channels, they may target different consumers and they are usually produced or provided by different undertakings. Even though some fashion designers nowadays also sell fashion accessories (such as jewellery and watches) and travel accessories under their marks, this is not the rule; it tends to apply only to (commercially) successful designers. Therefore, the contested goods are dissimilar to all the opponent’s goods and services.

Contested goods in Class 18

Travelling bags; umbrellas; holdalls are identically contained in both lists of goods (including synonyms).

The contested roll bags; all-purpose carrying bags; casual bags are included in or overlap with the broader category of the opponent’s travel bags. Therefore, they are identical.

The contested fur is included in the broader category of the opponent’s animal skins. Therefore, they are identical.

The contested walking sticks overlap with the opponent’s canes. Therefore, they are identical.

The contested backpacks and the opponent’s travel bags have the same nature and purpose and are sold through the same distribution channels. Furthermore, they target the same end users and are usually produced by the same undertakings. Therefore, they are similar to a high degree.

The contested trunks; sport bags; attache cases; briefbags; music cases and the opponent’s suitcases have the same purpose and are sold through the same distribution channels. Furthermore, they target the same end users and are usually produced by the same undertakings. Therefore, they are similar.

The contested parasols and the opponent’s umbrellas have the same or similar natures and purposes and are sold through the same distribution channels. Furthermore, they may target the same end users and be produced by the same undertakings. Therefore, they are similar.

The contested umbrella covers and the opponent’s umbrellas may be complementary. Furthermore, they have the same distribution channels, target the same end users and are usually produced by the same undertakings. Therefore, they are similar.

The contested chain mesh purses; purses; handbags; multi-purpose purses and the opponent’s travel bags have similar purposes. Furthermore, they are usually sold through the same distribution channels and target the same end users. Therefore, they are similar.

The contested vanity cases, not fitted and the opponent’s travel bags may be sold through the same distribution channels. Furthermore, they may target the same end users and be produced by the same undertakings. Therefore, they are similar to a low degree.

The contested keycases; card cases [notecases]; wallets and the opponent’s travel bags are sold through the same distribution channels and target the same end users. Furthermore, they are usually produced by the same undertakings. Therefore, they are similar to a low degree.

Before the rest of the contested goods are compared with the opponent’s goods and services, a clarification is required regarding the natural meaning of the opponent’s goods made of these materials (leather and imitations of leather) and not included in other classes. According to the Office’s Guidelines on Classification and the Common Communication on the Common Practice on the General Indications of the Nice Class Headings (28/10/2015), the category goods made of leather and imitations of leather does not provide a clear indication of the goods that are covered, as it states only what the goods are made of, and not what they are. It covers a wide range of goods that may have very different characteristics and/or purposes, may require very different levels of technical capability and know-how to be produced and/or used, and may target different consumers, be sold through different sales channels and therefore relate to different market sectors.

When comparing the contested shoulder belts; straps for handbags and the opponent’s vague category goods made of these materials (leather and imitations of leather) and not included in other classes, it cannot be assumed, without further examples or an express limitation by the opponent clarifying the category, that they have the same purpose, that their methods of use are the same, that they have the same distribution channels or that they are in competition or complementary. However, their natures can be considered the same, as the contested goods are or may be goods made of leather (or an imitation thereof) and it is reasonable to assume that the goods may be produced by the same companies, given that the required know-how and machinery (i.e. for cutting leather) may also be the same. Therefore, these goods are similar to only a low degree.

Contested goods in Class 25

Clothing; footwear; headgear are identically contained in both lists of goods (including synonyms).

The contested clothing for gymnastics; gowns; robes; underwear; teddies [underclothing]; suspenders; stockings; breeches; short-sleeve shirts; shirts; stuff jackets [clothing]; bodices [lingerie]; coats; hoods [clothing]; belts [clothing]; belts (Money -) [clothing]; tights; shoulder wraps; detachable collars; camisoles; neck scarfs [mufflers]; suits; beachwear; masquerade costumes; neckties; headbands [clothing]; pocket squares; scarves; gabardines [clothing]; jackets [clothing]; garters; skirts; pinafore dresses; gloves [clothing]; ski gloves; mackintoshes; ready-to-wear clothing; knitwear [clothing]; jumpers; leg warmers; hosiery; sweaters; muffs [clothing]; pelerines; mantillas; skorts; boxer shorts; bathing drawers; waistcoats; trousers; parkas; pelisses; furs [clothing]; pyjamas; ponchos; stocking suspenders; sock suspenders; brassieres; shawls; sashes for wear; briefs; topcoats; outerclothing; petticoats; slips [underclothing]; tee-shirts; turbans; combinations [clothing]; uniforms; veils [clothing]; clothing of imitations of leather; leather clothing are included in the broader category of the opponent’s clothing. Therefore, they are identical.

The contested training shoes; sandals; bath sandals; shoes; bath slippers; gymnastic shoes; beach shoes; football boots; half-boots; boots; wooden shoes are included in the broader category of the opponent’s footwear. Therefore, they are identical.

The contested bandanas [neckerchiefs]; berets; visors [headwear] hats; top hats; swimming caps; hats (paper -) [clothing] are included in the broader category of the opponent’s headgear. Therefore, they are identical.

The contested bathrobes and the opponent’s clothing have the same method of use and are sold through the same distribution channels. Furthermore, they target the same end users and may be produced by the same undertakings. Therefore, they are similar.

The contested sleep masks and the opponent’s clothing are sold through the same distribution channels. Furthermore, they are produced by the same undertakings. Therefore, they are similar to a low degree.

The contested linings (ready-made -) [parts of clothing]; dress shields; heels are parts and fittings for clothing or footwear, namely layers of cloth that are attached to the inside of an item of clothing to make it thicker or warmer, underarm liners (also called underarm pads or sweat guards) that are used under clothing to keep it free of perspiration stains, and parts for, for instance, high-heeled shoes. Although there is a degree of complementarity between these goods and the opponent’s clothing and footwear, they have different natures and purposes and are usually sold through different distribution channels. Furthermore, they are manufactured by different undertakings and may target different end users. The contested goods also have nothing in common with the rest of the opponent’s goods in Classes 18 and 25.

In addition, the contested goods and the opponent’s services in Class 35 – apart from being different in nature, since services are intangible whereas goods are tangible – serve different needs. As explained above, the purposes of the contested goods are to make clothing thicker or warmer, to keep clothing free of perspiration stains and to be the back part of shoes, while the main purposes of the opponent’s services are to assist businesses with organisation, economy and commercialisation and to provide advertising and administrative services. Furthermore, these goods and services have different methods of use and are not in competition. They have different distribution channels, target different end users and are produced or provided by different undertakings. The mere fact that the opponent’s services are in the field of clothing and accessories is not sufficient to establish complementarity between these goods and services, as the nature of the services cannot be considered closely enough related to that of the goods in question. For this reason, similarity cannot be established between these goods and services. Therefore, the contested goods are dissimilar to all of the opponent’s goods and services.

Contested services in Class 35

The contested franchising, namely consultation and assistance in business management, organisation and promotion overlaps with the opponent’s business assistance with the sale of clothing and accessories, insofar as the latter could deal with franchising. Therefore, they are identical.

Wholesale and retail services concerning the sale (including website sales) of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested wholesaling, retailing and sale via websites of leatherware, bags, travelling bags, umbrellas, walking sticks; wholesaling, retailing and website sales of clothing and clothing accessories, footwear, headgear and the opponent’s travel bags; umbrellas; canes; clothing; footwear, headgear are similar to a low degree. In relation to the contested wholesaling, retailing and sale via websites of leatherware, the goods sold and the opponent’s travel bags overlap, insofar as leatherware could be travel bags. Since these goods overlap and therefore are identical, the goods and services in question are similar to a low degree.

Similarity between wholesale and retail services of specific goods (including website sales) covered by one mark and specific goods covered by another mark can only be found where the goods involved in the wholesale and retail services (including website sales) and the specific goods covered by the other mark are identical. Since the goods involved in the contested wholesaling, retailing and sale via websites of precious metals, jewellery, precious stones, horological and chronometric instruments, briefcases, document holders, pocket wallets, purses, backpacks, sacks, key cases, key rings, trunks, parasols are not identical to the opponent’s goods in Classes 18 and 25, a similarity between the contested services and the opponent’s goods cannot be established.

Moreover, the contested services are mainly wholesale and retail of specific goods (including website sales). The opponent’s services are essentially business assistance, advertising and administrative services consisting of providing others with assistance in the sale of their goods and services by, for instance, promoting their launch and/or sale, or of reinforcing a client’s position in the market and acquiring competitive advantage through publicity. The contested services in question and the opponent’s services have nothing in common. The mere fact that the opponent’s services are in the field of clothing and accessories is not sufficient to establish complementarity between these services, as the nature of the opponent’s services cannot be considered adequately related to that of the contested services. For this reason, similarity cannot be established between these services. Therefore, the contested services are dissimilar to all of the opponent’s goods and services.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services found to be identical or similar (to varying degrees) to those of the earlier mark are directed at the public at large and business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to higher than average, depending on the specialised nature of the goods and services, the frequency of purchase and their price. An average degree of attention is deemed to be paid in relation to the goods or services that are not expensive, are frequently purchased and/or do not require specific knowledge to be properly used (e.g. umbrellas and parasols) and a high degree of attention is deemed to be paid in relation to those that are not frequently purchased, are expensive and/or require specific knowledge (e.g. franchising, namely consultation and assistance in business management, organisation and promotion).

c) The signs

Earlier trade mark	Contested sign

The relevant territory is Benelux.

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

The element ‘Vanilia’ of the earlier mark, written in a slightly stylised typeface, will be perceived as meaning ‘any tropical climbing orchid of the genus Vanilla’ (information extracted from Collins Dictionary on 15/10/2018 at https://www.collinsdictionary.com/dictionary/english/vanilla), although the corresponding word in Dutch, French and German is ‘Vanille’. It has no meaning in relation to the relevant goods and it is therefore distinctive to an average degree. Furthermore, this is the dominant element of the earlier mark, as it is the largest element and is placed at the top of the sign. The element ‘THE SHOP’ of the earlier mark will be understood by the relevant public with its meaning in English, since it consists of rather basic English words and a significant part of the general public in Benelux is familiar with English. As this element merely refers to the characteristics of the relevant goods and services, namely that they are sold or provided in a shop, it cannot serve to distinguish the signs from one another. Therefore, this element is non-distinctive.

The element ‘VANILLA’ of the contested sign will be perceived in the same way as the similar element of the earlier mark, regardless of the slightly stylised letters ‘A’ and ‘I’. It is therefore distinctive to an average degree.

Visually, the signs coincide in the sequence of letters ‘VANIL*A’, written in slightly stylised typefaces. The signs differ in the letters ‘I’ in the earlier mark and ‘L’ in the contested sign, in the element ‘THE SHOP’ in the earlier mark and in their typefaces, stylised letters and structures. Reference is made to the conclusions reached above regarding the distinctiveness of the elements of the signs.

As six out of the contested sign’s seven letters are reproduced in the dominant and only distinctive element of the earlier mark, the signs are visually similar to at least an average degree.

Aurally, the signs coincide in the sounds of the letters ‘VANIL*A’. The signs differ in the sounds of the letters ‘I’ of the earlier mark and ‘L’ of the contested sign and in the sound of the element ‘THE SHOP’ in the earlier mark, which has no counterpart in the contested sign, but is non-distinctive.

As the sounds of six out of the contested sign’s seven letters are reproduced in the first and only distinctive element of the earlier mark, the signs are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be perceived as referring to ‘vanilla’, the signs are conceptually highly similar.

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

d) Distinctiveness of the earlier mark

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

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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a non‑distinctive element in the mark, as stated above in section c) of this decision.

e) 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.

As concluded above, the goods and services are identical, similar (to varying degrees) and dissimilar. The consumers are the public at large and business customers with specific professional knowledge or expertise and their degree of attention may vary from average to higher than average. The signs are visually similar to at least an average degree, aurally highly similar and conceptually highly similar. The distinctiveness of the earlier mark is considered normal.

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).

Indeed, it is highly conceivable that the relevant consumer will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). This perception arises because six out of the contested sign’s seven letters are reproduced in the dominant and only distinctive element of the earlier mark.

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17). In the present case, the at least average degree of visual similarity, high degree of aural similarity and high degree of conceptual similarity between the signs offset any low degree of similarity between the goods and services.

Taking into account all the relevant factors, there is a likelihood of confusion, including for the professional public with a higher than average degree of attention, as 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).

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 Benelux trade mark registration No 801 507.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar (to varying degrees) to those of the earlier trade mark.

The rest of the contested goods and 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 goods and services cannot be successful.

The opponent has also based its opposition on the following earlier trade marks:

Benelux trade mark registration No 405 701 for the word mark ‘VANILIA’ and Benelux trade mark registration No 512 993 for the figurative mark .

Since these marks cover a narrower scope of goods and services than the earlier mark already compared, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods and 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

Richard BIANCHI

Mads Bjørn Georg JENSEN

Vít MAHELKA

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.