CANCELLATION No 15 250 C (INVALIDITY)

Luna AE, 4, Thoukididou St., 14565 Ag. Stephanos, Athens, Greece (applicant), represented by Sioufas & Associates Law Firm, 6A, Neou Falirou str, 18233 Agios Ioannis Rentis, Attikis, Greece (professional representative)

a g a i n s t

Luna Italia SRL con unico socio, Via Legnone 7, CAP22063 Cantu’ (CO), Italy (EUTM proprietor), represented by Ελενη Καπραλου, Οδός 25ης Μαρτίου 20, 15127 Μελίσσια, Greece (professional representative).

On 26/06/2019, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is partially upheld.

2. European Union trade mark No 16 308 108 is declared invalid for some of the contested goods, namely:

Class 25: Tennis sweatbands; veils [clothing]; wimples; clothing; water socks; sportswear; athletic tights; maillots; running vests; sports singlets; sports socks; sports shirts with short sleeves; sports jerseys; sports bras; mock turtleneck shirts; sleeveless jerseys; swim wear for gentlemen and ladies; moisture-wicking sports bras; gloves [clothing]; gloves including those made of skin, hide or fur; fingerless gloves; mittens; boas [necklets]; pelisses; furs [clothing]; fur muffs; ladies’ clothing; lingerie; boy shorts [underwear]; bathing costumes for women; nighties; coats for women; chemises; camisoles; ladies’ dresses; women’s ceremonial dresses; knee-high stockings; one-piece playsuits; dressing gowns; leather waistcoats; pedal pushers; leather belts [clothing]; negligees; clothing made of fur; clothing of imitations of leather; clothing of leather; dresses made from skins; cashmere clothing; plush clothing; beach clothes; leisurewear; clothing for gymnastics; beach wraps; bathing suit cover-ups; ready-made clothing; underwear; sweat-absorbent underwear; maternity lingerie; disposable underwear; foundation garments; thongs; fur stoles; stoles; fitted swimming costumes with bra cups; bed jackets; stocking suspenders; turtlenecks; waist cinchers; waist belts; belts [clothing]; girdles; belts made from imitation leather; wrap belts for kimonos (datemaki); knee warmers [clothing]; handwarmers [clothing]; arm warmers [clothing]; wrist warmers; thermal underwear; thermal socks; thermally insulated clothing; vest tops; slipovers [clothing]; socks; sweat-absorbent stockings; Japanese style socks (tabi); anti-perspirant socks; stockings; slipper socks; footless socks; bed socks; trouser socks; maillots [hosiery]; footless tights; ankle socks; socks and stockings; sock suspenders; ear muffs [clothing]; neckwear; camiknickers; baselayer bottoms; bottoms [clothing]; pajama bottoms; mufflers [clothing]; pantie-girdles; knickers; kimonos; teddies [underclothing]; leggings [trousers]; maternity leggings; bib tights; crop tops; trousers shorts; maternity shorts; short overcoat for kimono (haori); short petticoats; short-sleeved or long-sleeved t-shirts; short-sleeve shirts; short-sleeved t-shirts; waist strings for kimonos (koshihimo); bodices [lingerie]; bodies [clothing]; leotards; corsets [underclothing]; bustiers; tap pants; ascots; bolo ties with precious metal tips; functional underwear; shoulder straps for clothing; woolen clothing; woollen tights; woollen socks; v-neck sweaters; combinations [clothing]; eye masks; sleep masks; bathing suits; bikinis; long johns; long sleeve pullovers; long-sleeved shirts; polo sweaters; bralettes; cloaks; muffs [clothing]; scarves; head scarves; neck scarves; bustles for obi-knots (obiage-shin); miniskirts; petticoats; slips [underclothing]; silk clothing; silk scarves; monokinis; kerchiefs [clothing]; bandanas [neckerchiefs]; maternity shirts; tee-shirts; hooded tops; polo shirts; tennis shirts; chemise tops; jerseys [clothing]; yoga shirts; jogging tops; maternity tops; shirts and slips; crew neck sweaters; roll necks [clothing]; mock turtlenecks; cycling tops; tops [clothing]; warm-up tops; tube tops; boas; boleros; bath robes; bathwraps; pop socks; wedding dresses; bridal garters; body stockings; full-length kimonos (nagagi); union suits; pram suits; jumper suits; unitards; one-piece suits; coveralls; shortalls; rompers; petti-pants; yoga pants; pyjamas; baby doll pyjamas; pyjamas [from tricot only]; knitwear [clothing]; knitted gloves; hosiery; knitted underwear; cardigans; knit shirts; polo knit tops; slipovers; cyclists’ clothing; cowls [clothing]; aprons [clothing]; shirts; pullovers; turtleneck sweaters; hooded pullovers; mock turtleneck sweaters; tennis pullovers; garments for protecting clothing; rash guards; scrimmage vests; pleated skirts for formal kimonos (hakama); frock coats; lounging robes; loungewear; beach robes; maternity clothing; twin sets; tightening-up strings for kimonos (datejime); shorts; cycling shorts; tennis shorts; shift dresses; brassieres; strapless bras; leisure suits; bra straps; bandeaux [clothing]; woven clothing; belts made out of cloth; fabric belts [clothing]; sashes for wear; volleyball jerseys; undershirts; undershirts for kimonos (koshimaki); undershirts for kimonos (juban); tank tops; slacks; sash bands for kimono (obi); blousons; swaddling clothes; bridesmaid dresses; maternity dresses; tennis dresses; playsuits [clothing]; jogging suits; neckerchiefs; foulards [clothing articles]; skirts; tutus; tennis skirts; golf skirts; sweat shirts; hooded sweatshirts; morning coats; winter gloves; polar fleece jackets; puttees and gaiters; inner socks for footwear.

3. The European Union trade mark remains registered for all the remaining goods, namely:

Class 24: Woven fabrics; textile goods, and substitutes for textile goods; non-woven textile fabrics; breathable waterproof fabrics; moleskin [fabric]; velvet; fabric of imitation animal skins; lace fabrics; trellis [cloth]; textile fabric piece goods for use in the manufacture of clothing; elastic woven material; silk fabrics for printing patterns; elastic fabrics for clothing; jersey [fabric]; silk [cloth]; non-woven fabrics of synthetic fibres; non-woven fabrics of natural fibres; knitted elastic fabrics for ladies underwear; knitted elastic fabrics for bodices; knitted fabrics of cotton yarn; knitted fabrics of wool yarn; knitted fabrics of silk yarn; knitted fabrics of chemical-fiber yarn; polyester textiles; rayon fabric; elastic yarn mixed fabrics; hemp-wool mixed fabrics; hemp-silk mixed fabrics; wool-cotton mixed fabrics; cotton base mixed fabrics; wool base mixed fabrics; silk base mixed fabrics; silk-cotton mixed fabrics; silk-wool mixed fabrics; composite textile materials; taffeta [cloth]; tulle; linen cloth; fabric for use in the manufacture of bags; materials for use in making clothes; textiles made of cotton; mole skin; fibre fabrics for use in the manufacture of articles of clothing; textiles made of velvet; semi-synthetic fiber fabrics; spun silk fabrics; hand spun silk fabrics; wool yarn fabrics; knit lace fabrics; textiles made of satin; textiles made of synthetic materials; fabrics made from artificial fibres [other than for insulation]; fabrics of man-made fibres being textile goods in piece form; cotton fabrics; viscose textiles; lingerie fabric; textile fabrics for the manufacture of clothing; textile fabrics for use in the manufacture of sportswear; fabrics for use in making jerseys; textile fabrics for use in the manufacture of towels; apparel fabrics; flannel [fabric]; towels of textile; linens; towels of textile sold in pack form; towels [textile] for the beach; towelling [textile]; hand towels of textile; hand towels; face towels of textile; face towels; bath sheets; hooded towels; bath towels; beach towels; bath linen; nightdress cases of textile; textiles made of flannel.

Class 25: Head sweatbands; earbands; hats; gussets [parts of clothing]; gussets for underwear [parts of clothing]; gussets for leotards [parts of clothing]; gussets for stockings [parts of clothing]; gussets for tights [parts of clothing]; gussets for footlets [parts of clothing]; gussets for bathing suits [parts of clothing]; underarm gussets [parts of clothing]; ready-made linings [parts of clothing]; paper hats for use as clothing items; heelpieces for stockings; women’s foldable slippers; footwear for women; Japanese style sandals of leather; mules; esparto shoes or sandals; toe boxes; shoe straps; slippers; leather slippers; disposable slippers; pedicure slippers; foam pedicure slippers; leisure shoes; canvas shoes.

4. Each party bears its own costs.

REASONS

The applicant filed an application for a declaration of invalidity against all the goods of European Union trade mark No 16 308 108 , namely against all the goods in Classes 24 and 25. The application is based on, inter alia, EUTM No 9 773 896 . In relation to that mark, the applicant invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(b) EUTMR and Article 8 (5) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argued that the signs were similar as they contained the identical verbal element ‘Luna’, which was dominant in the contested sign. It further stated that the stylisation of the contested mark was not sufficient to allow the consumers to safely distinguish between the signs. It also claimed that the relevant goods and services were either identical or similar. Finally, it argued that the earlier marks had a reputation in Greece and Italy and provided evidence in support of its claim (listed below).

The EUTM proprietor contested the existence of likelihood of confusion between the signs and requested proof of use of both earlier marks on which the cancellation action was based.

The applicant pointed out that the earlier EUTM was registered for less than five years at the time of the filing of the invalidity request and thus was not yet subject to non-use. However, it provided proof of use of the second earlier mark (which will be listed and assessed further in the decision if needed).

In reply, the EUTM proprietor reaffirmed that use of the two earlier rights should have been provided by the applicant and stated that the documents provided were insufficient to demonstrate genuine use of the earlier marks and disputed the value of some of these documents. It also stated that the evidence at issue should be disregarded by the Office given that it was submitted without clear organisation and thus with no respect for the EUIPO’s guidelines on how to submit evidence of use.

The applicant replied to the proprietor’s arguments and submitted complementary evidence.

In its last observations, the EUTM proprietor reaffirmed its previous statements and replied to the applicant.

PROOF OF USE

According to Article 64(2) and (3) EUTMR, if the EUTM proprietor so requests, the applicant must furnish proof that, during the five-year period preceding the date of the application for a declaration of invalidity, 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 applicant cites as justification for its application, 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. If, on the date of filing or, where applicable, priority of the contested EUTM, the earlier mark had been registered for not less than five years, the applicant must submit proof that, in addition, the conditions set out in Article 47(2) EUTMR were satisfied on that date.

The same provision states that, in the absence of such proof, the application for a declaration of invalidity will be rejected.

The EUTM proprietor requested the applicant to submit proof of use of the trade marks on which the application is based.

The Cancellation Division finds it appropriate to first examine the application in relation to the applicant’s EUTM No 9 773 896 .

As stated above, according to Article 64(2) and (3) EUTMR, the earlier mark can only be subject to the use obligation when it has been registered for not less than five years on the date of the application for a declaration of invalidity (emphasis added).

Therefore, and contrary to the proprietor’s contentions, the decisive relevant date in cancellation proceedings is not the date of filing of the contested EUTM (as it is in opposition proceedings) but the date of the cancellation request. The date of filing (or priority) of the contested EUTM is only taken into account to determine whether use of the earlier mark should be proven for an additional relevant period in the case when the earlier mark was registered more than five years prior to the filing (or priority) of the contested mark.

The present application for a declaration of invalidity was filed on 14/07/2017.

Earlier trade mark No 9 773 896 was registered on 19/08/2012, that is, less than five years before the filing of the cancellation request.

Therefore, the request for proof of use is inadmissible as far as the applicant’s EUTM No 9 773 896 is concerned.

LIKELIHOOD OF CONFUSION — ARTICLE 60(1)(a) EUTMR IN CONNECTION WITH 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.

As indicated above, the assessment proceeds on the basis of the applicant’s EUTM No 9 773 896.

1. The goods

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

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

Class 25: Ladies’ underwear, lingerie, home-wear, swimwear, beachwear and relative accessories; disposable underwear; jockstraps [underwear]; knitted underwear; ladies’ underwear; long underwear; perspiration absorbent underwear clothing; sweat-absorbent underclothing [underwear]; thermal underwear; underwear; underwear (anti-sweat- ); underwear (anti-sweat -); woven or knitted underwear; women’s underwear; riding underwear.

The contested goods are the following:

Class 24: Woven fabrics; textile goods, and substitutes for textile goods; non-woven textile fabrics; breathable waterproof fabrics; moleskin [fabric]; velvet; fabric of imitation animal skins; lace fabrics; trellis [cloth]; textile fabric piece goods for use in the manufacture of clothing; elastic woven material; silk fabrics for printing patterns; elastic fabrics for clothing; jersey [fabric]; silk [cloth]; non-woven fabrics of synthetic fibres; non-woven fabrics of natural fibres; knitted elastic fabrics for ladies underwear; knitted elastic fabrics for bodices; knitted fabrics of cotton yarn; knitted fabrics of wool yarn; knitted fabrics of silk yarn; knitted fabrics of chemical-fiber yarn; polyester textiles; rayon fabric; elastic yarn mixed fabrics; hemp-wool mixed fabrics; hemp-silk mixed fabrics; wool-cotton mixed fabrics; cotton base mixed fabrics; wool base mixed fabrics; silk base mixed fabrics; silk-cotton mixed fabrics; silk-wool mixed fabrics; composite textile materials; taffeta [cloth]; tulle; linen cloth; fabric for use in the manufacture of bags; materials for use in making clothes; textiles made of cotton; mole skin; fibre fabrics for use in the manufacture of articles of clothing; textiles made of velvet; semi-synthetic fiber fabrics; spun silk fabrics; hand spun silk fabrics; wool yarn fabrics; knit lace fabrics; textiles made of satin; textiles made of synthetic materials; fabrics made from artificial fibres [other than for insulation]; fabrics of man-made fibres being textile goods in piece form; cotton fabrics; viscose textiles; lingerie fabric; textile fabrics for the manufacture of clothing; textile fabrics for use in the manufacture of sportswear; fabrics for use in making jerseys; textile fabrics for use in the manufacture of towels; apparel fabrics; flannel [fabric]; towels of textile; linens; towels of textile sold in pack form; towels [textile] for the beach; towelling [textile]; hand towels of textile; hand towels; face towels of textile; face towels; bath sheets; hooded towels; bath towels; beach towels; bath linen; nightdress cases of textile; textiles made of flannel.

Class 25: Beach hats; tennis sweatbands; ear bands; head sweatbands; bathing caps; veils [clothing]; wimples; hats; clothing; water socks; sportswear; athletic tights; maillots; running vests; sports singlets; sports socks; sports shirts with short sleeves; sports jerseys; sports bras; mock turtleneck shirts; sleeveless jerseys; swim wear for gentlemen and ladies; moisture-wicking sports bras; gloves [clothing]; gloves including those made of skin, hide or fur; fingerless gloves; mittens; boas [necklets]; pelisses; furs [clothing]; fur muffs; ladies’ clothing; lingerie; boy shorts [underwear]; bathing costumes for women; nighties; coats for women; chemises; camisoles; ladies’ dresses; women’s ceremonial dresses; knee-high stockings; one-piece playsuits; dressing gowns; leather waistcoats; pedal pushers; leather belts [clothing]; negligees; clothing made of fur; clothing of imitations of leather; clothing of leather; dresses made from skins; cashmere clothing; plush clothing; beach clothes; leisurewear; clothing for gymnastics; beach wraps; bathing suit cover-ups; ready-made clothing; underwear; sweat-absorbent underwear; maternity lingerie; disposable underwear; foundation garments; thongs; fur stoles; stoles; fitted swimming costumes with bra cups; bed jackets; stocking suspenders; turtlenecks; waist cinchers; waist belts; belts [clothing]; girdles; belts made from imitation leather; wrap belts for kimonos (datemaki); knee warmers [clothing]; handwarmers [clothing]; arm warmers [clothing]; wrist warmers; thermal underwear; thermal socks; thermally insulated clothing; vest tops; slipovers [clothing]; socks; sweat-absorbent stockings; Japanese style socks (tabi); anti-perspirant socks; stockings; slipper socks; footless socks; bed socks; trouser socks; maillots [hosiery]; footless tights; ankle socks; socks and stockings; sock suspenders; ear muffs [clothing]; neckwear; camiknickers; baselayer bottoms; bottoms [clothing]; pajama bottoms; mufflers [clothing]; pantie-girdles; knickers; kimonos; teddies [underclothing]; leggings [trousers]; maternity leggings; bib tights; crop tops; trousers shorts; maternity shorts; short overcoat for kimono (haori); short petticoats; short-sleeved or long-sleeved t-shirts; short-sleeve shirts; short-sleeved t-shirts; waist strings for kimonos (koshihimo); bodices [lingerie]; bodies [clothing]; leotards; corsets [underclothing]; bustiers; tap pants; ascots; bolo ties with precious metal tips; functional underwear; shoulder straps for clothing; woolen clothing; woollen tights; woollen socks; v-neck sweaters; combinations [clothing]; eye masks; sleep masks; bathing suits; bikinis; long johns; long sleeve pullovers; long-sleeved shirts; polo sweaters; bralettes; cloaks; muffs [clothing]; scarves; head scarves; neck scarves; bustles for obi-knots (obiage-shin); miniskirts; petticoats; slips [underclothing]; silk clothing; silk scarves; monokinis; kerchiefs [clothing]; bandanas [neckerchiefs]; maternity shirts; tee-shirts; hooded tops; polo shirts; tennis shirts; chemise tops; jerseys [clothing]; yoga shirts; jogging tops; maternity tops; shirts and slips; crew neck sweaters; roll necks [clothing]; mock turtlenecks; cycling tops; tops [clothing]; warm-up tops; tube tops; boas; boleros; bath robes; bathwraps; pop socks; wedding dresses; bridal garters; body stockings; full-length kimonos (nagagi); union suits; pram suits; jumper suits; unitards; one-piece suits; coveralls; shortalls; rompers; petti-pants; yoga pants; pyjamas; baby doll pyjamas; pyjamas [from tricot only]; knitwear [clothing]; knitted gloves; hosiery; knitted underwear; cardigans; knit shirts; polo knit tops; slipovers; cyclists’ clothing; cowls [clothing]; aprons [clothing]; shirts; pullovers; turtleneck sweaters; hooded pullovers; mock turtleneck sweaters; tennis pullovers; garments for protecting clothing; rash guards; scrimmage vests; gussets [parts of clothing]; gussets for underwear [parts of clothing]; gussets for leotards [parts of clothing]; gussets for stockings [parts of clothing]; gussets for tights [parts of clothing]; gussets for footlets [parts of clothing]; gussets for bathing suits [parts of clothing]; underarm gussets [parts of clothing]; pleated skirts for formal kimonos (hakama); frock coats; lounging robes; loungewear; beach robes; maternity clothing; twin sets; tightening-up strings for kimonos (datejime); shorts; cycling shorts; tennis shorts; shift dresses; brassieres; strapless bras; leisure suits; bra straps; bandeaux [clothing]; woven clothing; belts made out of cloth; fabric belts [clothing]; sashes for wear; volleyball jerseys; undershirts; undershirts for kimonos (koshimaki); undershirts for kimonos (juban); tank tops; slacks; sash bands for kimono (obi); blousons; swaddling clothes; bridesmaid dresses; maternity dresses; tennis dresses; ready-made linings [parts of clothing]; playsuits [clothing]; jogging suits; neckerchiefs; foulards [clothing articles]; skirts; tutus; tennis skirts; golf skirts; sweat shirts; hooded sweatshirts; morning coats; heelpieces for stockings; paper hats for use as clothing items; winter gloves; polar fleece jackets; women’s foldable slippers; puttees and gaiters; footwear for women; Japanese style sandals of leather; mules; esparto shoes or sandals; inner socks for footwear; toe boxes; shoe straps; bath slippers; bath sandals; slippers; leather slippers; disposable slippers; pedicure slippers; foam pedicure slippers; leisure shoes; canvas shoes; bath shoes; beach shoes.

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

The term ‘including’, used in the EUTM proprietor’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 (on the use of ‘in particular’ see reference in 09/04/2003, T‑224/01, Nu-Tride, EU:T:2003:107).

As a preliminary remark, according to Article 33(7) EUTMR, the Nice Classification serves purely administrative purposes. Therefore, goods or services may not be regarded as being similar or dissimilar to each other simply on the grounds that they appear in the same or different classes in the Nice Classification.

Contested goods in Class 24

The contested goods in Class 24 are textiles and fabrics, and textile goods consisting mainly of household linen. They are dissimilar to all the applicant’s goods in Class 25. Even if some textile goods in Class 24 and clothing in Class 25 share a point of contact, that is to say, that they are made of textile material, this is not enough to justify a finding of similarity. Indeed, goods (or services) are complementary if there is a close connection between them, in the sense that one is indispensable (essential) or important (significant) for the use of the other in such a way that consumers may think that responsibility for the production of those goods or provision of those services lies with the same undertaking (11/05/2011, T‑74/10, Flaco, EU:T:2011:207, § 40; 21/11/2012, T‑558/11, Artis, EU:T:2012:615, § 25; 04/02/2013, T‑504/11, Dignitude, EU:T:2013:57, § 44). In the present case, the goods under comparison serve completely different purposes: clothing is meant to be worn by people, for protection and/or fashion, whereas textile goods are mainly for household purposes and interior decoration. Therefore, their method of use is also different. Moreover, they have different distribution channels and sales outlets and are not usually manufactured by the same undertaking. Consequently, they are neither complementary nor in competition.

Contested goods in Class 25

Lingerie; knitted underwear; disposable underwear; underwear; thermal underwear are identically contained in both lists of goods.

The contested sports bras; moisture-wicking sports bras; brassieres; strapless bras; bra straps; bralettes; bandeaux [clothing]; boy shorts [underwear]; negligees; sweat-absorbent underwear; teddies [underclothing; functional underwear; slips [underclothing]; undershirts ; undershirts for kimonos (koshimaki); undershirts for kimonos (juban) are included in the applicant’s broader category underwear. Therefore, they are identical.

The contested maternity lingerie; bodices [lingerie] are included in the applicant’s broader category lingerie. Therefore, they are identical.

The contested maillots; swim wear for gentlemen and ladies; bathing costumes for women; beach wraps; bathing suit cover-ups; fitted swimming costumes with bra cups; bathing suits; bikinis; monokinis; bath robes; bathwraps; beach robes are included in the applicant’s broader categories swimwear; beachwear and relative accessories. Therefore, they are identical.

The contested clothing includes, as a broader category the applicant’s underwear. Since the Office cannot dissect ex officio the broad category of the contested goods, they are considered identical to the applicant’s goods.

The contested beach hats; bathing caps; bath slippers; bath sandals; bath shoes; beach shoes are articles that belong to a category of goods that are worn on the beach or used in (generally obligatory) swimming pools. These goods are offered together with the opponents’ swimwear and beachwear, which are defined as swimsuits for use in a pool or on the beach, and usually come from the same undertakings, targeting the same public. It follows that these goods are similar.

The contested tennis sweatbands; veils [clothing]; wimples; water socks; sportswear; athletic tights; running vests; sports singlets; sports socks; sports shirts with short sleeves; sports jerseys; mock turtleneck shirts; sleeveless jerseys; gloves [clothing]; gloves including those made of skin, hide or fur; fingerless gloves; mittens; boas [necklets]; pelisses; furs [clothing]; fur muffs; ladies’ clothing; nighties; coats for women; chemises; camisoles; ladies’ dresses; women’s ceremonial dresses; knee-high stockings; one-piece playsuits; dressing gowns; leather waistcoats; pedal pushers; leather belts [clothing]; clothing made of fur; clothing of imitations of leather; clothing of leather; dresses made from skins; cashmere clothing; plush clothing; beach clothes; leisurewear; clothing for gymnastics; ready-made clothing; foundation garments; thongs; fur stoles; stoles; bed jackets; stocking suspenders; turtlenecks; waist cinchers; waist belts; belts [clothing]; girdles; belts made from imitation leather; wrap belts for kimonos (datemaki); knee warmers [clothing]; handwarmers [clothing]; arm warmers [clothing]; wrist warmers; thermal socks; thermally insulated clothing; vest tops; slipovers [clothing]; socks; sweat-absorbent stockings; Japanese style socks (tabi); anti-perspirant socks; stockings; slipper socks; footless socks; bed socks; trouser socks; maillots [hosiery]; footless tights; ankle socks; socks and stockings; sock suspenders; ear muffs [clothing]; neckwear; camiknickers; baselayer bottoms; bottoms [clothing]; pajama bottoms; mufflers [clothing]; pantie-girdles; knickers; kimonos; leggings [trousers]; maternity leggings; bib tights; crop tops; trousers shorts; maternity shorts; short overcoat for kimono (haori); short petticoats; short-sleeved or long-sleeved t-shirts; short-sleeve shirts; short-sleeved T‑shirts; waist strings for kimonos (koshihimo); bodies [clothing]; leotards; corsets [underclothing]; bustiers; tap pants; ascots; bolo ties with precious metal tips; shoulder straps for clothing; woolen clothing; woollen tights; woollen socks; v-neck sweaters; combinations [clothing]; eye masks; sleep masks; long johns; long sleeve pullovers; long-sleeved shirts; polo sweaters; cloaks; muffs [clothing]; scarves; head scarves; neck scarves; bustles for obi-knots (obiage-shin); miniskirts; petticoats; silk clothing; silk scarves; kerchiefs [clothing]; bandanas [neckerchiefs]; maternity shirts; tee-shirts; hooded tops; polo shirts; tennis shirts; chemise tops; jerseys [clothing]; yoga shirts; jogging tops; maternity tops; shirts and slips; crew neck sweaters; roll necks [clothing]; mock turtlenecks; cycling tops; tops [clothing]; warm-up tops; tube tops; boas; boleros; pop socks; wedding dresses; bridal garters; body stockings; full-length kimonos (nagagi); union suits; pram suits; jumper suits; unitards; one-piece suits; coveralls; shortalls; rompers; petti-pants; yoga pants; pyjamas; baby doll pyjamas; pyjamas [from tricot only]; knitwear [clothing]; knitted gloves; hosiery; cardigans; knit shirts; polo knit tops; slipovers; cyclists’ clothing; cowls [clothing]; aprons [clothing]; shirts; pullovers; turtleneck sweaters; hooded pullovers; mock turtleneck sweaters; tennis pullovers; garments for protecting clothing; rash guards; scrimmage vests; pleated skirts for formal kimonos (hakama); frock coats; lounging robes; loungewear; maternity clothing; twin sets; tightening-up strings for kimonos (datejime); shorts; cycling shorts; tennis shorts; shift dresses; leisure suits; woven clothing; belts made out of cloth; fabric belts [clothing]; sashes for wear; volleyball jerseys; tank tops; slacks; sash bands for kimono (obi); blousons; swaddling clothes; bridesmaid dresses; maternity dresses; tennis dresses; playsuits [clothing]; jogging suits; neckerchiefs; foulards [clothing articles]; skirts; tutus; tennis skirts; golf skirts; sweat shirts; hooded sweatshirts; morning coats; winter gloves; polar fleece jackets; puttees and gaiters; inner socks for footwear are different articles of clothing. As such, they are at least similar to a low degree to the applicant’s goods, which consist of underwear, because they can be of the same or similar nature, they serve the same purpose to cover and protect the body, and they target the same public. Moreover, they can be purchased in the same distribution channels and the manufactures can coincide.

The contested head sweatbands; earbands; hats; paper hats for use as clothing items; women’s foldable slippers; footwear for women; Japanese style sandals of leather; mules; esparto shoes or sandals; toe boxes; shoe straps; slippers; leather slippers; disposable slippers; pedicure slippers; foam pedicure slippers; leisure shoes; canvas shoes are various items of headgear and footwear. They are dissimilar to the applicant’s goods, which mainly consist of underwear. Even though end consumers can coincide and these goods are used to cover and protect certain parts of the human body (and therefore they can, broadly speaking, share a common purpose), this is not enough to justify a finding of similarity since the others criteria do not coincide. Footwear, headgear and underwear are not usually sold close to each other in the same department, and companies producing footwear and headgear rarely (if ever) produce underwear and vice versa.

The contested gussets [parts of clothing]; gussets for underwear [parts of clothing]; gussets for leotards [parts of clothing]; gussets for stockings [parts of clothing]; gussets for tights [parts of clothing]; gussets for footlets [parts of clothing]; gussets for bathing suits [parts of clothing]; underarm gussets [parts of clothing]; ready-made linings [parts of clothing]; heelpieces for stockings are parts and fittings for clothing, namely layers of cloth that are attached to the inside of an item of clothing to make it thicker or warmer. Although there is a degree of complementarity between them, these goods are dissimilar to the applicant’s goods which consist of underwear: they have different natures and purposes and are usually sold through different distribution channels. Moreover, they are generally manufactured by different undertakings and may target different end users. Furthermore, 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 identical or similar to varying degrees are directed at the public at large.

The degree of attention is considered to be average.

3. The signs

Earlier trade mark	Contested trade mark

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, bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

Both marks are figurative marks. The verbal element of the earlier mark consists of the word ‘Luna’ depicted in a stylised purple script in title case. Above the letter ‘n’ are two overlapping circles, one white with a purple outline and the other entirely purple. The contested sign is composed of two verbal elements. The word ‘LUNA’ is depicted in stylised bold gold upper-case letters. The middle bar of the letter ‘N’ is prolonged above and below the word with curving lines. At the bottom of the sign and in a smaller size, the word ‘SPLENDIDA’ is portrayed in gold upper-case letters.

The common word ‘luna’ means moon in Spanish, Italian and Romanian. It is also the Latin word for ‘moon’. Therefore, it is likely to be understood by a significant part of the relevant public in the European Union because of its proximity with words in other languages (such as ‘lune’ in French or ‘lunar’ in English). Considering that this word has no meaning in relation to the relevant goods, it is distinctive to an average degree.

The word ‘splendida’ means splendid, excellent in Italian. It is also the Latin feminine form of splendidus, meaning splendid, glittering. It is close to its equivalents in other languages, such as ‘splendide’ in French and ‘espléndido’ in Spanish. Therefore, it is also likely to be understood by a significant part of the relevant public and thus perceived as a laudatory element aimed to highlight the positive qualities of the goods in relation to which it is used (30/06/2004, T‑281/02, ‘Mehr für Ihr Geld’, EU:T:2004:198, § 29; 21/05/2015, T‑203/14, Splendid, EU:T:2015:301,§ 21). Since the word ‘splendida’ directly refers to one of the goods’ alleged characteristics, it is weakly distinctive.

The depiction of the marks and the purple colour of the earlier mark are of a purely decorative nature without any trade mark significance. The figurative element in the earlier mark could be perceived as meaningless or as representing the moon or a lunar eclipse, echoing the word ‘Luna’. In any event, it does not convey any meaning in relation to the relevant goods and therefore is distinctive to an average degree. However, the gold colour of the contested sign is likely to be perceived as a laudatory indication of the higher quality of the goods (premium variety of goods). It is therefore non-distinctive.

The earlier mark has no element that could be considered more dominant (visually eye-catching) than the other elements, while the word ‘LUNA’ and its stylisation overshadow the word ‘SPLENDIDA’ in the contested sign.

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; 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE, § 24; 13/12/2011, R 53/2011‑5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

Visually, the signs coincide in the word ‘luna’; however, they differ in their graphical representation as well as in the additional figurative elements in both signs and the additional word ‘SPLENDIDA’ in the contested sign.

When comparing signs in terms of their word elements, the Office considers signs similar insofar as they share a significant number of letters in the same position and when they are not highly stylised or when they are stylised in the same or a similar manner. Similarity may be found despite the fact that the letters are graphically portrayed in different typefaces, in italics or bold, in upper or lower case or in colour (18/06/2009, T‑418/07, LiBRO, EU:T:2009:208; 15/11/2011, T‑434/10, Alpine Pro Sportswear & Equipment, EU:T:2011:663; 29/11/2012, C‑42/12 P, Alpine Pro Sportswear & Equipment, EU:C:2012:765).

Taking into account that the depiction of the signs including their figurative elements is of a lesser impact than the verbal elements and that the word ‘SPLENDIDA’ is weakly distinctive, the marks are visually similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘LU-NA’, present identically in both signs. They differ by the sound of the letters ‘SPLENDIDA’, which have no counterparts in the earlier mark.

It has been confirmed by case-law that consumers generally only refer to the dominant elements in trade marks (03/07/2013, T‑206/12, LIBERTE american blend, EU:T:2013:342, § 43-44) and, in any case, that they tend to shorten marks containing several words. This is especially the case when the purely descriptive words can be easily separated from the dominant term (03/07/2013, T‑243/12, Aloha 100% natural, EU:T:2013:344, § 34).

Therefore, considering that the differing element is weakly distinctive and may not be pronounced by part of the public because of its position and size, the signs are aurally at least highly similar.

Conceptually, the public in the relevant territory will associate both signs with concepts of moon or lunar because of the common verbal element ‘luna’. The figurative element of the earlier mark will be either associated with the same meaning or considered as meaningless. The word ‘SPLENDIDA’ is distinctive to a low degree as detailed above. Therefore, 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.

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.

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

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods 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

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).

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).

The relevant goods are partly identical and similar to varying degrees and partly dissimilar. They target the public at large, who display an average degree of attention.

The signs are visually similar to an average degree, aurally at least highly similar, and conceptually highly similar.

Overall, the signs coincide in the word ‘luna’, which constitutes the only word element in the earlier mark and the only distinctive verbal element in the contested sign as the second word ‘SPLENDIDA’ is a laudatory term. The signs also differ in their respective depictions and colours and in the figurative elements of both marks. However, considering that the figurative elements play a secondary role in the assessment of the likelihood of confusion, the Cancellation Division is of the opinion that the differences between the signs are not sufficient to allow consumers to safely differentiate between them.

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

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T 104/01, Fifties, EU:T:2002:262, § 49), for example for a new variety of goods of higher quality due to the presence of the gold colour and the term ‘SPLENDIDA’.

In this regard, it should be noted that it is common in the clothing sector for the same mark to be configured in various ways according to the type of product which it designates. It is also common for a single clothing manufacturer to use sub-brands (signs that derive from a principal mark and share with it a common dominant element) in order to distinguish its various lines from one another.

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

Pursuant to the above, the contested trade mark must be declared invalid for the goods found to be identical or similar to those of the earlier trade mark, including insofar as the goods similar to a low degree are concerned.

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

Since the cancellation application is partially successful on the basis of the inherent distinctiveness of the earlier mark, there is no need at this stage of the decision to assess the enhanced degree of distinctiveness of the earlier mark due to its reputation as claimed by the applicant. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness, given that the remaining goods and services are dissimilar.

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

The applicant has also based its cancellation application on Greek trade mark No 154 903 for underwear clothing and use of internet site in Classes 25 and 38; the applicant invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(a) and (b) EUTMR and Article 8 (5) EUTMR in relation to this mark.

Since this mark covers a narrower scope of goods in Class 25 and the remaining contested goods in Classes 24 and 25 are clearly dissimilar to the applicant’s services in Class 38, the outcome cannot be different for goods for which the cancellation application has already been rejected. Therefore, there is no likelihood of confusion for those goods and services.

The cancellation application must also fail insofar as it is based on grounds under Article 8(1)(a) EUTMR in conjunction with Article 60(1)(a) EUTMR and directed against the remaining goods because the signs and the goods are obviously not identical.

It follows that, given that the application is partly well founded under Article 8(1) EUTMR in conjunction with Article 60(1)(a) EUTMR, there is no need to examine the evidence of use submitted by the applicant in relation to earlier Greek trade mark registration No 154 903.

Since the opposition is only partly well founded under Article 8(1)(b) EUTMR, the Cancellation Division will now continue with the examination of the remaining ground, namely Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds for refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

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

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

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

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

Reputation of the earlier trade marks

According to the applicant, the earlier marks have a reputation in Italy and Greece.

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

In the present case, the contested trade mark was filed on 02/02/2017. Therefore, the applicant was required to prove that the trade marks on which the application is based had acquired a reputation in Italy and Greece prior to that date.

The evidence must also show that the reputation was acquired for the goods for which the applicant has claimed reputation, namely:

• EUTM No 9 773 896 for ladies’ underwear, lingerie, homewear, swimwear, beachwear and relative accessories; disposable underwear; jockstraps [underwear]; knitted underwear; ladies’ underwear; long underwear; perspiration absorbent underwear clothing; sweat-absorbent underclothing [underwear]; thermal underwear; underwear; underwear (anti-sweat- ); underwear (anti-sweat -); woven or knitted underwear; women’s underwear; riding underwear in Class 25;

• Greek trade mark No 154 903 for underwear clothing and services use of internet site in Classes 25 and 38.

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

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

On 27/03/2018, the applicant submitted the following evidence:

• Catalogues (Annexes 5 to 12):

• Annex 5: Undated catalogue in which the sign is depicted in relation to various underwear items (notably bras and slips);

• Annex 6: Price lists dated 2012 from the applicant’s company Luna A.E.;

• Annex 7: Catalogue dated 2012-2013 in which the applicant’s sign is affixed; we can see various articles of underwear and pyjamas;

• Annex 8: Catalogue dated ‘Fall Winter 2011-2012’ depicting the applicant’s sign ‘Luna’ in relation to underwear items;

• Annex 9: Undated catalogue ‘Miracle by Luna’ for underwear clothing;

• Annexes 10 and 11: Undated catalogues ‘Luna essentials’ presenting line of articles of underwear;

• Annex 12: Catalogue ‘Luna’ dated 2013 for bras and slips.

• Advertising material (Annexes 13 and 14, undated). One photograph of a model wearing underwear with the sign ‘Miracle by Luna’ and one photograph of a boutique counter on which the sign ‘Luna’ is depicted and what seem to be brochures are presented.

• Websites’ printouts (Annexes 15 to 19, dated 19/03/2018). These relate to an online shop for underwear articles under references such as ‘LUNA PRESTIGE’, ‘LUNA BRAZILIAN SLIP’, ‘LUNA ABSTRACT’, ‘LUNA MIRACLE’.

• Balance sheets (Annexes 20 to 22). Unexplained by the applicant; the sign is depicted on the documents.

• Commercial figures (Annexes 23 to 34). Copies of applicant’s commercial books dated 2012 and 2013; according to the applicant’s partial translations, these documents show high total amount of sales in relation to their online shops or retail shops.

• Invoices and receipts (Annexes 35 to 45).

• Packaging and image of the goods (Annexes 46 to 49, undated). It consists of pictures of three packaging boxes bearing the applicant’s sign and on which we can read indications of the goods (‘secret sense strapless’, ‘Tender E’, and ‘Legend Slip’), and pictures of eight underwear items (including four bras and three slips) with labels on which the same sign is depicted: .

• Affidavit (Annex 50). Documents signed by C. Nikoloas, dated 23/03/2018, owner of a retail shop in Attika (Greece) specializing mainly in underwear, lingerie, home wear, swimwear and beach wear. According to this statement, he has sold goods from the applicant since 1996. He indicates that between 1996 and 2014 the applicant ‘has been one of the biggest Greek companies in the field of manufacture and distribution of underwear, lingerie, home wear, swimwear, beachwear and relative accessories’ and that the goods bear the mark ‘Luna’. He adds that until 2013 the applicant had five boutiques in Athens, one outlet and nine pavilions in three ‘reputed department stores’ in Athens, and was present in other EU countries, such as Bulgaria, Czechia, Germany, Cyprus and Austria, as well as Italy, where the applicant’s presence is stronger. He further states that the mark ‘Luna’ ‘is very well known in Greece’ and that ‘many of [his] customers come in the shop and ask for this brand specifically’. Finally, he attests that ‘until 2013 there were many advertisements of the products in Greek magazines’.

• Two pictures of the exterior of one retail shop (Annex 51, undated). The sign is affixed on the front window and we can see the commercial goods: feminine underwear.

Before the deadline, in completion of the invalidity request, the proprietor also filed additional evidence, notably the following:

• Extracts from the website Skroutz.gr dated 04/07/2017 listing 74 ‘Luna’ female underwear articles

• Extracts from the website store kapetanis.com of an advertisement for ‘Best sellers essentials’, where the figurative mark ‘Luna’ and various female underwear articles ‘Luna’ are depicted, dated 14/07/2017;

• Facebook page of ‘Luna underwear’ in Greek dated 04/07/2017, where we can see various advertisements published by the brand and comments in Greek;

• Articles in Italian (with partial English translation) published on www.lineaintima.net, presenting articles on ‘Luna’ and notably one article dated 8/06/2017 ‘Luna, on a path of a strategic rebranding’ indicating that for its 21st anniversary, the brand was designing a new logo.

Having examined the material listed above, the Cancellation Division concludes that the evidence submitted by the applicant does not demonstrate that the earlier trade marks acquired a reputation.

Even assessed globally, despite showing use of the trade marks, the documents do not provide the Cancellation Division with sufficient information concerning the marks’ recognition on the market.

The evidence, notably the catalogues, certainly do show use of the earlier marks in relation to feminine underwear articles. However, in the absence of some more supporting documentation, for example, declarations made by independent parties attesting as to the reputation of the mark, verified or verifiable data as to the market share held, opinion polls and market surveys, the documents provided are insufficient to demonstrate the market share of the trade marks or the extent to which the trade mark has been promoted or the awareness of the mark among the relevant public. In this regard, the affidavit signed by the owner of an underwear retail shop that sold articles branded ‘Luna’ is an indication that the mark was indeed exploited in Greece during the relevant period in relation to part of the relevant goods, but it is not relevant proof of the well-known character of the mark for the public. The same applies to the advertising material: without any figures concerning the number of publications where they were distributed, the material is not sufficient to consider that a significant part of the public has been exposed to the marks. Finally, numerous documents are undated or dated outside the relevant period. Therefore, even if they can demonstrate that the trade marks have been put to use, they are not able to evidence reputation of these signs during the relevant period.

As a result, the evidence, even considered as a whole, does not show the degree of recognition of the trade marks by the relevant public. Under these circumstances, the Cancellation Division concludes that the applicant failed to prove that its trade marks have a reputation, and therefore this evidence cannot support the applicant’s argumentation on the enhanced distinctiveness of the earlier marks.

As seen above, it is a requirement for the cancellation application to be successful under Article 8(5) EUTMR that the earlier trade marks have a reputation. Since it has not been established that the earlier trade marks have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the application on this ground must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part 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 Cancellation Division

Carmen SÁNCHEZ PALOMARES

Julie, Marie-Charlotte HAMEL

Catherine MEDINA

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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.