OPPOSITION No B 2 963 042

Debonair Trading Internacional LDA, Avenida do Infante 50, 9000 Funchal, Madeira, Portugal (opponent), represented by Beck Greener, Fulwood House 12 Fulwood Place, London WC1V 6HR, United Kingdom (professional representative)

a g a i n s t

Viator Health Ltd, Rodney House Clifton Down Road, Clifton Bristol BS84AL, United Kingdom (applicant), represented by Olaf Kretzschmar, Untere Querstraße 1, 23730 Neustadt in Holstein, Germany (professional representative).

On 04/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 963 042 is partially upheld, namely for the following contested goods and services:

Class 3: Soaps; Perfumes; Essential oils; Hair lotions; Massage oils; Cosmetic massage creams; Bubble baths; Hand powders; Face powders; Soap powders; Lip balms; Depilatory preparations; Hair protection lotions; Cosmetic hair lotions; Body lotions; Shower gels; Bath herbs.

Class 5: Hygienic lubricants; Medicinal herbs; Extracts of medicinal herbs; Medicinal herbs in dried or preserved form; Tampons.

Class 25: Clothing; Footwear; Headgear; Lingerie; Leather suits.

Class 35: Retail services relating to clothing; Retail services in relation to toiletries.

2. European Union trade mark application No 16 586 315 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 16 586 315 .

The opposition is based on twenty three European Union trade mark registrations and ten United Kingdom trade mark registrations (inter alia, European Union trade mark registration No 10 891 265, ‘SO…? LOVELY’), as well as on fifteen earlier non-registered trade marks used in the course of trade in the United Kingdom and one earlier non-registered trade mark used in the course of trade in Ireland. The opponent invoked Article 8(1)(b) and 8(5) EUTMR in relation to the European Union and national trade mark registrations (the latter ground only in relation to some of the earlier marks) and Article 8(4) EUTMR in relation to the non-registered marks.

PROOF OF USE

Proof of use of some of the earlier marks was requested by the applicant. However, at this point, the Opposition Division does not consider it appropriate to undertake an assessment of the evidence of use submitted (15/02/2005, T 296/02, Lindenhof, EU:T:2005:49, § 41, 72). The examination of the opposition will proceed as if genuine use of the earlier marks had been proven for all the goods and services invoked, which is the best light in which the opponent’s case can be considered.

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 10 891 265, which was not subject to use requirement at the relevant time for the present proceedings.

a) The goods and services

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

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

The contested goods and services are the following:

Class 3: Soaps; Perfumes; Essential oils; Hair lotions; Massage oils; Cosmetic massage creams; Bubble baths; Hand powders; Face powders; Soap powders; Lip balms; Depilatory preparations; Hair protection lotions; Cosmetic hair lotions; Body lotions; Shower gels; Bath herbs.

Class 5: Hygienic lubricants; Medicinal herbs; Extracts of medicinal herbs; Medicinal herbs in dried or preserved form; Tampons.

Class 10: Manual massage instruments; Sex aids; Adult sexual aids; Vibrators, being adult sexual aids; Artificial vaginas, being adult sexual aids; Artificial penises [adult sexual stimulation aids]; Benwa balls, being adult sexual aids; Artificial penises, being adult sexual aids; Penis enlargers, being adult sexual aids; Condoms.

Class 25: Clothing; Footwear; Headgear; Lingerie; Leather suits.

Class 35: Retail services relating to clothing; Retail services in relation to toiletries; Retail services in relation to sex aids.

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:

The contested perfumes are included in the opponent’s list as perfumery. Therefore these goods are identical.

The contested essential oils, massage oils are similar to the opponent’s perfumery as they usually coincide in producer, relevant public and distribution channels.

The contested hair lotions; hair protection lotions; cosmetic hair lotions are included in the broader category of the opponent’s hair care preparations. Therefore, the goods are identical.

The contested soaps; cosmetic massage creams; bubble baths; hand powders; face powders; soap powders; lip balms; depilatory preparations; body lotions; shower gels; bath herbs are included in or overlap with the broad category of the opponent’s cosmetics. Therefore the goods are identical.

Contested goods in Class 5

The contested hygienic lubricants; tampons are similar to a low degree to the opponent’s cosmetics in Class 3. It may be, as the applicant argues, that the natures and purposes of the goods are different. However, these goods may share the same purpose of hygiene and/or disinfection of the human body, they are all found in pharmacies or other specialised shops and are often manufactured by the same companies. Moreover, the broad category of the opponent’s cosmetics also includes goods such as cleansers for intimate personal hygiene purposes or vaginal washes for personal sanitary or deodorant purposes, which usually coincide in producer, relevant public and distribution channels with the contested goods.

The contested medicinal herbs; extracts of medicinal herbs; medicinal herbs in dried or preserved form include goods such as aloe vera preparations for pharmaceutical purposes, whereas the opponent’s broad category of cosmetics include goods such as aloe vera preparations for cosmetic purposes; these goods can therefore have the same or a similar purpose, target the same relevant public, share the same distribution channels and be produced by the same undertakings. Therefore, they are similar.

Contested goods in Class 10

The contested goods in this class can be summarized as sex toys, objects that are used to give sexual pleasure as well as condoms.

While the opponent’s goods in Class 3 may also be used for sexual stimulation, their main purpose is different and their normal use serves different purposes than sexual stimulation. For example, while body lotions might be used for massage, a massage has normally not the purpose to stimulate a person sexually. The fact that some of the opponent’s goods in Class 3 could be offered in a package with the contested goods does not make them complementary for the general public.

With regard to the opponent’s goods in Class 25, while it is true that lingerie and costumes (fancy dresses) may also be used to stimulate sexually, this is not the normal use of these products. The goods in Class 25 dress and protect the body from the elements and thus have different purpose from the contested goods in Class 10. Neither do they have the same nature, nor the same method of use; neither are they complementary.

The fact that the goods applied for and the goods protected by the earlier trade marks are sometimes sold by the same undertaking, presented in the same catalogues or on the same internet sites and are all purchased by general consumers of different ages and sex is not relevant in the present case. The goods have a different nature, a different intended purpose and a different method of use and are neither in competition with each nor complementary. (22/09/2014, R 2118/2013-4, FI / FI ET AL, § 20 and 24).

Therefore, the contested goods in Class 10 must be considered dissimilar to the opponent’s goods in Classes 3 and 25.

Contested goods in Class 25

Clothing, footwear, headgear are identically included in both lists of goods.

The contested lingerie, leather suits are included in the broader category of the opponent’s clothing. Therefore, the goods are identical.

Contested services in Class 35

As for the contested retail services relating to clothing; retail services in relation to toiletries, it should be borne in mind that retail services concerning the sale of particular goods are similar (to a low degree) to these particular goods (judgment of 05/10/2011, T-421/10, Rosalia de Castro, EU:T:2011:565, § 33).

The opponent’s earlier mark covers clothing, and cosmetics (which at least overlap with toiletries). The retailing of these goods is, consequently, similar to a low degree to the goods of the opponent’s earlier mark in Classes 3 and 25 respectively.

However, as seen above, sex aids are not similar to any of the opponent’s goods. Consequently, the contested retail services in relation to sex aids is even more remote and thus are also dissimilar to the opponent’s goods.

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 various degrees) are directed at the public at large. The degree of attention is considered to be average.

c) The signs

SO...? LOVELY
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.

The elements ‘SO’, ‘LOVELY’ and ‘DIVINE’ are meaningful English terms. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The element ‘SO’ in both signs is an English adverb, conjunction, adjective or pronoun, meaning inter alia 'to such extent' and it may be perceived as such both in the contested sign and in the earlier mark. In that sense the word ‘so’ has no particular meaning in relation to the goods and services concerned and the inherent distinctiveness of this element of the earlier mark is considered normal (see to this effect 15/02/2019, R 1298/2018-4, So...? / S.O. § 46 and 54).

The question mark and the full stops in the earlier mark will not be perceived as particularly distinctive being simple punctuation marks (21/02/2012, R 1384/2011-4, SO...? FASHION WITH ATTITUDE / ATTITUDE, § 17; 22/07/2014, R 942/2013-4, N.K.G. / NKD, § 45; 15/02/2019, R 1298/2018-4, So...? / S.O. § 47).

‘LOVELY’ means, inter alia, ‘inspiring love; lovable’ or ‘highly pleasing or enjoyable’ in English. ‘DIVINE’ refers to something ‘of supreme excellence or worth’, ‘splendid; perfect’ (information extracted from Collins English Dictionary on X/X/2019 at www.collinsdictionary.com). Both of these terms will be perceived as laudatory claims about the positive qualities of the goods and services in question, which essentially consist of cosmetics, medicinal and sanitary preparations, clothing, footwear, headgear and their retail. Consequently, the distinctiveness of these terms is low.

The contested mark also includes eight silver, gold and pink cylindrical objects forming a heart shape. Contrary to the applicant’s arguments, the cylindrical objects are not likely to be perceived as vibrators, given that the goods and services in conflict do not concern sex toys and consumers do not normally proceed to analyse signs in detail but perceive them as a whole. Therefore, in relation to the goods and services concerned the cylindrical objects may therefore be perceived simply as such, or as lip sticks in relation to cosmetics for example, but either way the figurative element will primarily be perceived as a stylised heart shape. As to the distinctiveness of a heart shape as such, in relation to the relevant goods and services in Classes 3, 5, 25 and 35, it must be considered rather low as the image of a heart per se is commonly used to evoke love, positive characteristics and feelings. Attached to the goods at hand or the retail sales thereof, in particular with respect to clothing or cosmetics, the use of various shapes of hearts is common for ornamental purposes and, hence, of limited distinctiveness (see 17/10/2012, R 278/2011-4, SHAPE OF A HEART (fig.) / SHAPE OF A HEART (fig.), § 23; 13/01/2016, R 341/2015-2 – Device of a heart (fig.) § 61).

The contested sign has no element that could be considered clearly more dominant than other elements. At the same time, the term ‘SO’ is more eye-catching than the term ‘DIVINE’ on account of its much larger size, thicker font and central position; therefore, ‘SO’ is the dominant verbal element of the contested sign.

The consumer is deemed generally to pay greater attention to the beginning of a mark than to its end, the initial part of a mark normally having a greater impact, both visually and phonetically, than the final part (22/05/2012, T‑179/11, ‘Seven (SEVEN SUMMITS)’, EU:T:2012:254, § 26 and 36 and the case-law cited). This is because the public reads from left to right, or from top to bottom, which makes the part placed at the left (or the top) of the sign (the initial part) the one that first catches the attention of the reader.

Visually, the letters ‘SO’ of the earlier word mark are entirely reproduced by the verbal element ‘SO’ of the contested sign, in an overall quite standard stylisation. As explained above, the question mark and the full stops will not be perceived as particularly distinctive being simple punctuation marks and therefore give raise only to minor visual differences. Furthermore, even if the signs also visually differ in the elements ‘LOVELY’ of the earlier mark and ‘DIVINE’ and the heart shape in the contested sign, these elements are only weak, for the reasons set out above.

Moreover, as regards the heart shape, it should be considered that 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 is true, as the applicant argues and supports by citing various case law references, that this principle is not always the case. The applicant also correctly argues that the figurative element of the contested mark is not negligible given its size and position. However, its weak distinctive character must be taken into account for the visual comparison, which results in consumers paying more attention to the contested sign’s verbal elements, in particular ‘SO’, which is distinctive, it is the top verbal element and much bigger in size than the weak term ‘DIVINE’.

In view of all the above, the signs must be considered to be visually similar overall, albeit to a lower than average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘SO’, and differ in the sounds of the terms ‘LOVELY’ and ‘DIVINE’ respectively, which are nevertheless of weak distinctive character. The coincidence is found in the beginning of the earlier sign, and, given that it is in the top, it will be pronounced first in the contested sign as well.

Therefore, the signs must also be considered to be aurally similar to a lower than average degree.

Conceptually, reference is made to the above findings concerning the semantic content conveyed by the marks to the relevant public under analysis. The signs coincide conceptually in the meaning of the word ‘SO’ as explained above, together with a laudatory expression associated with the high pleasure or loveliness or supreme excellence of the goods and services concerned. Even if ‘DIVINE’ and ‘LOVELY’ do not convey the exact same meaning, they will still be associated with a similar concept, one that is further reinforced by the additional heart shape in the contested sign which will also be associated with the concept of love, heart devices being commonly used as a symbol precisely for this concept. Therefore, even if the concepts conveyed by the signs may be weak, they are still similar overall.

Therefore, the signs must be considered to be 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.

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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent 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 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 some weak elements in the mark, as stated above in section c) of this decision.

e) Other arguments

The applicant refers to previous decisions of the Office to support its arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the applicant refers to case No C-270/14 P, claiming that the Court held in that case that ‘SO…?’ in the opponent’s earlier marks does not coincide with the element ‘SO’ in the application. However, the mark applied for was ‘sô’, which on account of the accent is quite different from ‘SO’. Moreover, the Court’s finding referred to the opponent’s claim to a family of marks, which is not assessed in the present case. Therefore, the previous case referred to by the applicant is not relevant to the present proceedings.

The applicant also refers to a decision of the UK Intellectual Property Office of 14/09/2018 concerning a sign identical to the contested application to support its arguments, finding no likelihood of confusion. However, the applicant has not submitted a copy of the alleged decision and therefore, in the absence of supporting evidence, its reasoning could not be duly considered.

f) Global assessment 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.

The goods and services are partially identical or similar to varying degrees and partially dissimilar. The degree of attention of the relevant public is average.

The signs have been found to be visually and aurally similar, albeit to a lower than average degree and conceptually similar to an average degree. The coinciding term ´SO´ appears in both marks together with an additional word which, despite not having the same meaning, will be perceived in both signs as a weak word conveying a laudatory claim concerning the positive characteristics of the goods and services concerned, further reinforced by the heart shape in the contested sign.

Therefore, in the present case the signs coincide, at their beginning or top, in their most distinctive element, which also is the dominant verbal element of the contested sign.

The differences in the punctuation marks in the earlier sign which are of limited distinctiveness as explained above, the weak heart shape in the contested mark, or the weak terms ‘LOVELY’ and ‘DIVINE’ respectively are not sufficient to safely exclude a likelihood of confusion.

In other words, in view of the similarities between the signs it cannot be safely excluded that consumers might believe that the goods and services at issue that are identical or similar, including those similar to a low degree, originate from the same or economically linked undertakings.

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 the opponent’s European Union trade mark registration No 10 891 265. 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.

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 the goods 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.

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

The opponent also invoked the following earlier rights, in relation to the following goods:

(1) European Union trade mark registration No 485 078 for the word mark ‘SO…?’:

Class 3: Toilet preparations; preparations for use in the shower and the bath, all being non-medicated; perfumes; fragrances; aftershaves; creams, gels and lotions; cosmetics; eau de cologne; toilet waters; hair styling products; anti-perspirants; deodorants for personal use.

(2) European Union trade mark registration No 3 188 091 for the word mark ‘SO…? DESIRABLE’:

Class 3: Toiletries; hair care products; perfumery; cosmetics; deodorants.

(3) European Union trade mark registration No 8 492 217 for the word mark ‘SO…? SEXY’:

Class 3: Perfumery; deodorants.

(4) European Union trade mark registration No 2 335 511 for the word mark ‘SO…? KISS ME’:

Class 3: Toiletries; hair care products; perfumery; cosmetics; deodorants.

(5) European Union trade mark registration No 4 246 311 for the word mark ‘SO…? WILD’:

Class 3: Toiletries; perfumery; deodorants; body lotion; shower gel.

(6) European Union trade mark registration No 4 330 221 for the word mark ‘SO…? SINFUL’:

Class 3: Toiletries; perfumery; deodorants; body lotion; shower gel.

(7) European Union trade mark registration No 5 099 635 for the word mark ‘SO…? SUPERSTAR’:

Class 3: Perfumery; perfumed body spray; eau de toilette; personal care deodorants; body lotion; shower gel.

(8) European Union trade mark registration No 5 530 993 for the word mark ‘SO…? SENSUAL’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

(9) European Union trade mark registration No 7 055 239 for the word mark ‘SO…? ETERNAL’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

(10) European Union trade mark application No 7 237 671 for the word mark ‘SO…?’:

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(11) European Union trade mark registration No 8 657 637 for the word mark ‘SO…? BRIT’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

(12) European Union trade mark registration No 9 067 299 for the word mark ‘SO…? EXCLUSIVE’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

(14) European Union trade mark registration No 10 891 307 for the word mark ‘SO…? ADDICTIVE’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(15) European Union trade mark registration No 10 891 224 for the word mark ‘SO…? SEDUCTIVE’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(16) European Union trade mark registration No 11 359 973 for the word mark ‘SO…? GLAMOROUS’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(17) European Union trade mark registration No 11 359 882 for the word mark ‘SO…? FABULOUS’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(18) European Union trade mark registration No  11 787 901 :

Class 25: Clothing; headgear; T-shirts; caps; belts.

(19) European Union trade mark application No 13 320 131 for the word mark ‘SO…? COUTURE’:

Class 3:  Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(20) European Union trade mark registration No 13 623 021 for the word mark ‘SO…? BURLESQUE’:

Class 3:  Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(21) European Union trade mark registration No 13 623 012 for the word mark ‘SO…? LONDON’:

Class 3:  Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner;

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(22) European Union trade mark registration No 10 742 153 for the word mark ‘SO COSMETICS’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(23) European Union trade mark registration No 12 442 811 for the word mark ‘SO YOU’:

Class 3: Hair care preparations; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(24) United Kingdom trade mark registration No 2 155 752 for the word mark ‘SO…? DESIRABLE’:

Class 3: Toilet preparations; perfumes; toilet waters; fragrances; deodorants; preparations for the hair; cosmetics.

(25) United Kingdom trade mark registration No 2 259 592 for the word mark ‘SO…? KISS ME’:

Class 3: Toiletries; hair care products; perfumery; cosmetics; deodorants.

(26) United Kingdom trade mark registration No 2 374 586 for the word mark ‘SO…? WILD:

Class 3: Non-medicated toilet preparations; perfumery; deodorants; body lotions; shower gel.

(27) United Kingdom trade mark registration No 2 408 599 for the word mark ‘SO…? SUPERSTAR’:

Class 3: Perfumery; deodorants; body lotions; shower gel.

(43) United Kingdom trade mark registration No 2 258 614 for the word mark ‘SO…? SEXY’:

Class 3: Toiletries; hair care products; perfumery; cosmetics; deodorants.

(44) United Kingdom trade mark registration No 2 642 811 for the word mark ‘SO…? GLAMUROUS’:

Class 3: Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

(45) United Kingdom trade mark registration No 2 642 838 for the word mark ‘SO…? FABULOUS’:

Class 3: Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

(46) United Kingdom trade mark registration No 3 051 518 for the word mark ‘SO…? COUTURE’:

Class 3: Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(47) United Kingdom trade mark registration No 3 064 725 for the word mark ‘SO…? BURLESQUE’:

Class 3: Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

(48) United Kingdom trade mark registration No 3 064 727 for the word mark ‘SO…? LONDON’:

Class 3: Hair care products; perfumery; perfumed body spray; eau de toilette; cosmetics; personal care deodorants; body lotion; shower gel; dry shampoo; hair care shampoo; hair care conditioner.

Class 25: Clothing; footwear; headgear; T-shirts; caps.

All these earlier marks cover the same or a narrower scope of goods than those covered by the earlier mark already examined. Therefore, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods and services. Therefore, it is also not necessary to verify whether or not all these earlier marks have been substantiated by the opponent nor to wait for the earlier trade mark applications invoked either to be registered or refused.

Furthermore, given that examination of these signs would not change the outcome, it is also unnecessary to examine the evidence of use filed by the opponent in relation to some of the earlier marks. Moreover, it is not necessary to assess the opponent’s claim to a family of marks. Since the remaining goods and services are dissimilar, analysing such a claim would not change the outcome.

The examination of the opposition will nevertheless proceed with the other two grounds invoked by the opponent, namely Article 8(4) and 8(5) EUTMR.

NON‑REGISTERED MARK OR ANOTHER SIGN USED IN THE COURSE OF TRADE – ARTICLE 8(4) EUTMR

The opponent based its opposition also on the following non-registered trade marks:

(1) ‘SO...?’ used in the course of trade in Ireland and the United Kingdom for perfumery, cosmetics, deodorants;

(2) ‘SO...? VA VA VOLUME’ used in the course of trade in the United Kingdom for dry shampoo;

(3) ‘SO…? ROCK ME’ used in the course of trade in the United Kingdom for perfumery, deodorants;

(4) ‘SO...? ROCK 'N' ROLL’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(5) ‘SO...? DARING’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(6) ‘SO...? INTO THE NIGHT’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(7) ‘SO…? ENTICING’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(8) ‘SO...? FAB’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(9) ‘SO...? ON THE BEACH’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(10) ‘SO...? SHOP TIL U DROP’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(11) ‘SO...? FOR ME’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(12) ‘SO...? IN LOVE’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(13) ‘SO...? DIVINE’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(14) ‘SO...? KISS ME DIVINE’ used in the course of trade in the United Kingdom for perfumery, deodorants.

(15) ‘SO...? SINFUL DIVINE’ used in the course of trade in the United Kingdom for perfumery, deodorants.

According to Article 8(4) EUTMR, upon opposition by the proprietor of a non‑registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for shall not be registered where and to the extent that, pursuant to the Union legislation or the law of the Member State governing that sign:

(a) rights to that sign were acquired prior to the date of application for registration of the European Union trade mark, or the date of the priority claimed for the application for registration of the European Union trade mark;

(b) that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.

Therefore, the grounds of refusal of Article 8(4) EUTMR are subject to the following requirements:

 the earlier sign must have been used in the course of trade of more than local significance prior to the filing of the contested trade mark;

 pursuant to the law governing it, prior to the filing of the contested trade mark, the opponent acquired rights to the sign on which the opposition is based, including the right to prohibit the use of a subsequent trade mark;

 the conditions under which the use of a subsequent trade mark may be prohibited are fulfilled in respect of the contested trade mark.

These conditions are cumulative. Therefore, where a sign does not satisfy one of those conditions, the opposition based on a non‑registered trade mark or other signs used in the course of trade within the meaning of Article 8(4) EUTMR cannot succeed.

a) The opponent’s right vis‑à‑vis the contested trade mark

The opponent relies on the action of passing-off under the law of the UK and indicates that a similar law applies in Ireland. According to the opponent, the following three elements must be shown to prevent use of a trade mark by a party:

 goodwill;

 misrepresentation leading or likely to lead the public to believe that the goods or services offered are those of the opponent;

 damage.

The opponent must demonstrate that the applicant’s mark would be likely to lead the public to believe that the applicant’s goods originate from the opponent

The contested trade mark must be likely to lead the public to believe that goods to be offered by the applicant are the opponent’s goods. Therefore, it is necessary to examine whether, on a balance of probabilities, it is likely that a substantial part of the relevant public will be misled into purchasing the applicant’s goods in the belief that they are the opponent’s.

Therefore, a comparison of the signs is required. The trade mark ‘SO… LOVELY?’ and the contested sign have already been compared above under the grounds of Article 8(1)(b) EUTMR, from the perspective of the English-speaking public. Reference is made to those findings.

As regards the non-registered trade marks invoked by the opponent, the Opposition Division notes that they follow the same structure as the opponent’s earlier registered trade mark compared above under the grounds of Article 8(1)(b) EUTMR, i.e. consisting of the elements ‘SO…?’ followed by other meaningful and possibly weak (or not) element(s). Consequently, the signs are visually and aurally similar, at least, to a lower than average degree.

Furthermore, the public is unlikely to be misled where the contested goods and services are dissimilar to those upon which the opponent’s goodwill has been built. Therefore, the contested goods and services must be compared with the goods for which the opponent has claimed that it has acquired goodwill through use.

The remaining, dissimilar, goods and services against which the opposition is directed are the following:

Class 10: Manual massage instruments; Sex aids; Adult sexual aids; Vibrators, being adult sexual aids; Artificial vaginas, being adult sexual aids; Artificial penises [adult sexual stimulation aids]; Benwa balls, being adult sexual aids; Artificial penises, being adult sexual aids; Penis enlargers, being adult sexual aids; Condoms.

Class 35: Retail services in relation to sex aids.

The opponent’s goods covered by the opponent’s earlier mark European Union trade mark registration No 10 891 265, ‘SO…? LOVELY’ have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings. This earlier mark of the opponent covers the same or even broader scope of goods as those relied on in relation to the opponent’s non-registered trade marks. These goods are therefore also dissimilar to the remaining contested goods and services of the applicant.

Under these circumstances, the Opposition Division finds it unlikely that the opponent’s customers would mistake the applicant’s goods and services for those of the opponent, even if the signs have some similarities and there is therefore no likelihood that the relevant public is misled or deceived as to the commercial origin of those goods and services. Therefore, the opposition is not well founded under Article 8(4) EUTMR.

The examination of the opposition will proceed with the last ground invoked by the opponent, Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

The opponent claims that the following earlier trade marks enjoy reputation in the United Kingdom and in Ireland:

 European Union trade mark registration No 485 078 for the word mark ‘SO…?’;

 European Union trade mark registration No 3 188 091 and UK trade mark registration No 2 155 752, both for the word mark ‘SO…? DESIRABLE’;

 European Union trade mark registration No 2 335 511 and UK trade mark registration No 2 259 592 for the word mark ‘SO…? KISS ME’;

 European Union trade mark registration No 4 246 311 and UK trade mark registration No 2 374 586 for the word mark ‘SO…? WILD’;

 European Union trade mark registration No 4 330 221 for the word mark ‘SO…? SINFUL’

 European Union trade mark registration No 5 099 635 and UK trade mark registration No 2 408 599 for the word mark ‘SO…? SUPERSTAR’;

 European Union trade mark registration No 5 530 993 for the word mark ‘SO…? SENSUAL’;

 European Union trade mark registration No 7 055 239 for the word mark ‘SO…? ETERNAL’;

 European Union trade mark registration No 10 742 153 for the word mark ‘SO COSMETICS’;

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

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

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

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

a) Reputation of the earlier trade marks

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 11/04/2017. However, the contested trade mark has a priority date of 09/03/2017. Therefore, the opponent was required to prove that the relevant trade marks on which the opposition is based had acquired a reputation prior to that date. The evidence must also show that the reputation was acquired for the goods for which the opponent has claimed reputation, namely in connection with all or some of the goods in Class 3 on which the opposition is based as outlined in the full listing of these earlier marks further above.

The remaining, dissimilar, goods and services against which the opposition is directed are the following:

Class 10: Manual massage instruments; Sex aids; Adult sexual aids; Vibrators, being adult sexual aids; Artificial vaginas, being adult sexual aids; Artificial penises [adult sexual stimulation aids]; Benwa balls, being adult sexual aids; Artificial penises, being adult sexual aids; Penis enlargers, being adult sexual aids; Condoms.

Class 35: Retail services in relation to sex aids.

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.

On 03/04/2018 the opponent submitted the following evidence:

 Witness Statement of Mr Karim Gangji, a Director of Incos Limited, dated 27/03/2018, stating that Incos Limited is an exclusive licensee of the opponent since January 1999. Mr Gangji states that products have been sold under the ‘SO’ marks since 1994 and refers to the sales figures of products under the ‘SO’ marks sold in UK and Ireland during the years 1994 to 1998. In the Statement it is indicated that the core target market for the ‘SO’ products is 14 to 17 year olds with average disposable funds. The Statement also contains information on the sums spent on marketing in the EU for the years between 1999 and 2017, a breakdown per different types of marketing (for the years 2003 to 2012), as well as further data on marketing and promotional activities. The Statement further provides information on the content of each of the exhibits (marked from KG-1 to KG-15) that are attached thereto.

 Exhibit KG-1: Table setting out the number of products sold by the opponent’s licensee in the EU under the ‘SO’ marks between 2000 and 2013 (the table provides a breakdown per year and pieces of products sold under the indicated trade marks, however, no breakdown per types of products or country is provided);

 Exhibit KG-2: Examples of the packaging of beauty products (perfumes, fragrances, gift sets) bearing the trade marks ‘SO…? KISS ME’, ‘SO…? DESIRABLE’, ‘SO…?’, ‘SO…? SINFUL’, ‘SO…? WILD’ and the figurative mark ‘SO…? INSPIRED’, as well as products bearing other signs;

 Exhibit KG-3: Selection of more than 150 sample invoices, covering the period from 14/02/2000 to 07/03/2017 concerning various ‘SO…?’ products destined for the UK, Ireland, Germany, France, Denmark, Sweden, Finland, the Netherlands, Austria, Italy, Spain, Portugal, Malta, Estonia, Lithuania and the Czech Republic. The products are body spray, eau de toilette, dry shampoo, shower gel, body lotion, gift sets, lip balm set, bath and body set, cosmetic bag, t-shirt, tattoos, carrier bags, fragrance and shower set, body spray, for thousands of GBP;

 Exhibit KG-4 Examples of ‘SO…?’ products on store shelves and featured in in-store magazines, according to the opponent’s notes, in the United Kingdom, Ireland, Czech Republic, Latvia, Lithuania and Italy in the years 2012-2015;

 Exhibits KG-5 and 6: Examples of the advertisements and articles about the ‘SO’ brand in various magazines in the UK and the EU (Sweden, Finland, Poland, Portugal, Italy Ireland, the Netherlands), such as Cosmopolitan, Cosmo Girl!, Sugar, Heat, Shout, Elle Girl, TV Hits, Pride, Beauty, Bliss, Reveal, Mizz, Top of the Pops, We♥ Pop, Hair Ideas placed between 1999 and 2017 (not on all magazines dates are visible and sometimes the dates are added by the opponent). The witness statement contains circulation figures for some of the UK magazines;

 Exhibit KG-7: Printouts in relation to TV advertising campaigns in relation to the earlier mark ‘SO…? SUPERSTAR’ and ‘SO…? ENTERNAL’ which according to the opponent’s information ran on TV and on the Internet in 2007 and 2008;

 Exhibit KG-8: Printouts in relation to advertising campaigns in relation to the earlier marks ‘SO…? COUTURE’ and ‘Body Mist by SO…?’, which according to the opponent’s information, were advertised on buses in Dublin in 2015 and on buses and underground stations in London in 2017;

 Exhibit KG-9: Examples of promotions of products bearing the earlier marks by giving away free samples of the products, and by arranging giveaways of products in magazine competitions, with a magazine subscription offer or purchase of a magazine (dated in the period 2001 – 2014, however, a significant part of the evidence is undated, with illegible dates or with dates indicated by the opponent);

 Exhibits 10: Leaflets, flyers and magazine articles about promotional events in order to promote the ‘SO…? KISS ME’, ‘SO…? WHAT’, ‘SO…? ETERNAL’ and ‘SO…? SUPERSTAR’ fragrances in the years 2002, 2006, 2007, 2008 in the United Kingdom, Sweden, Denmark, Finland and the Netherlands.

 Exhibit KG-11: Promotional materials on Facebook and Twitter, and English- and Spanish-language online newspapers and blogs undated or dated in 2011-2017 and product placement in a music video in 2012;

 Exhibit KG-12: Articles relating to awards received by 'SO…? BRIT' and ‘SO…? SEXY’, winning Best Self Select Fragrance in the Pure Beauty Awards 2012 and 2013;

 Exhibit KG-13: ’SO…? Brand Information’, a survey carried out in 1998 by Taylor Nelson, an independent market information group, amongst eleven to sixteen year olds and seventeen to twenty-four year olds;

 Exhibit KG-14: A document showing a part of the ranking from 2005, conducted by EUROMONITOR showing that the 'SO…?' brand is ranked 15th top UK female fragrance brands by retail value;

 Exhibit KG-15: Article in the blog ‘Love, Libby xo’, remembering the ‘SO…?’ brands from her schooldays ten years ago;

Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade marks cited above acquired a reputation in the relevant territories.

Reputation requires recognition of the mark by a significant part of the relevant public. In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 22).

Furthermore, it must be recalled that, as follows from Article 76(1) EUTMR (in the version in force at the time of commencement of the adversarial part, now Article 95(1) EUTMR), in inter partes proceedings, the Office is restricted in its examination to the acts, evidence and arguments submitted by the parties. Therefore, in assessing whether the earlier mark enjoys reputation, the Office may neither take into account facts known to it as a result of its own private knowledge of the market, nor conduct an ex officio investigation, but should base its findings exclusively on the information and evidence submitted by the opponent. The evidence must be clear, convincing and ultimately reveal facts necessary to safely conclude that the mark is known by a significant part of the public (decision of the Boards of Appeal of 06/11/2014, R 0437/2014-1, SALSA/SALSA (fig.) et al.).

As an initial observation, the Opposition Division notes that as far as the Witness Statement is concerned, Article 10(4) EUTMDR (former Rule 22(4) EUTMIR, in force before 01/10/2017) expressly mentions written statements referred to in Article 97(1)(f) EUTMR as admissible means of evidence. Article 97(1)(f) EUTMR lists means of giving evidence, amongst which are sworn or affirmed written statements or other statements that have a similar effect according to the law of the State in which they have been drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perception of the party involved in the dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all.

The final outcome depends on the overall assessment of the evidence in the particular case. This is because, in general, further evidence is necessary to establish use (or reputation), since such statements have to be considered as having less probative value than physical evidence (labels, packaging, etc.) or evidence originating from independent sources.

Bearing in mind the foregoing, it is necessary to assess the remaining evidence to see whether or not the contents of the Witness Statement are supported by the other items of evidence.

In the present case, an overall assessment of the documents submitted shows that the evidence consists to a significant extent of documents emanating from the opponent. The impressive sales figures and advertising expenses, as indicated in the Witness Statement, are not supported by objective evidence. The opponent has not submitted objective evidence that may support the figures in the tables such as data extracted from official sources regarding the marks’ market share in the UK or Ireland, the opponent’s turnover, etc.

The opponent submitted invoices, however, account should be taken of the fact that the vast majority of the invoices are issued before 2009 and/or concern territories other than the UK and Ireland for which reputation is claimed. Furthermore, the evidence must be assessed as a whole and invoices are just one of the elements of this assessment. As the opponent did not submit market share figures there is no indication as to the size of the perfume and cosmetics market in the United Kingdom or Ireland. In the absence of information about the perfume and cosmetics market and the opponent’s share thereof, the amount of sales demonstrated by the invoices merely show some use but cannot support a finding of reputation. The evidence, albeit voluminous, lacks objective data related to the United Kingdom and Ireland, such as market share information, proceeding from official documents (annual reports, accountancy documents, etc.).

The evidence contains some promotional materials (photographs, advertisements, flyers, etc.). However, these materials do not reflect promotional actions of such an extent so as to lead to the conclusion that they necessarily resulted in awareness of the mark on the part of the public in the United Kingdom or in Ireland. The promotional events, for instance, refer to sporadic promotional actions whose impact in terms of recognition of the earlier marks is not possible to determine. Furthermore, the opponent just asserts, but does not prove either, that some of these actions have indeed reached consumers in the UK or Ireland.

In the Opposition Division’s view, the presence of the earlier marks on social networks and in blogs are nowadays not valuable indicators of recognition but almost a normal activity for any company on the market, especially in the perfume and cosmetics sector.

As regards the survey and the ranking (Exhibits KG-13 and KG-14), suffice it to notice that they are dated in 1998 (more than 19 years before the priority date of the contested mark) and in 2005 (more than 12 years before the priority date of the contested mark) respectively and are of no use for showing a market recognition of the earlier marks as at the moment of the priority date of the contested sign.

Under these circumstances and in the absence of any recent independent and objective evidence that would enable the Opposition Division to draw solid conclusions about the degree of recognition of the earlier marks by the relevant public at the relevant date, the market share held by each of the marks, the position they occupy in the market in relation to competitors’ goods, the duration, extent and geographical area of its use or the extent to which they have been promoted, it is concluded that the evidence does not show the degree of recognition of the trade marks by the relevant public. Even bearing in mind that the evidence must be looked at in its entirety, avoiding a piecemeal approach, the Opposition Division concludes that the opponent failed to prove that its trade marks have a reputation.

As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that the earlier trade marks have a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected as far as it is based on this ground. Therefore, again, it is not necessary to verify whether or not all these earlier marks have been substantiated by the opponent.

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

SAM GYLLING

Marianna KONDAS

Lena FRANKENBERG GLANTZ

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.