CANCELLATION No 34 747 C (INVALIDITY)

Dolce & Gabbana Trademarks S.r.l., Via Goldoni n. 10, 20129 Milan, Italy (applicant), represented by Barzano’ & Zanardo Milano S.P.A., Via Borgonuovo, 10, 20121 Milan, Italy (professional representative)

a g a i n s t

Dean Gera Haircare Limited, 75 Old Hospital Street, Valletta VLT 1643, Malta (EUTM proprietor), represented by Michael Zammit Maempel, 1 Andrea Zammit Street, Lija LJA 1301, Malta (professional representative).

On 23/07/2020, the Cancellation Division takes the following

DECISION

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

2. European Union trade mark No 16 960 221 is declared invalid in its entirety.

3. The EUTM proprietor bears the costs, fixed at EUR 1 080.

REASONS

The applicant filed an application for a declaration of invalidity against all the goods and services of European Union trade mark No 16 960 221 . The application is based on, inter alia, international trade mark registration No 649 385 ‘DG’ designating, inter alia, Benelux, Germany, Spain, France, Croatia, Latvia, Portugal and Romania. The applicant invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(b) EUTMR.

PRELIMINARY REMARKS

Acquiescence

In the present case, the EUTM proprietor claims that the applicant has acquiesced in the use of the contested EUTM. The proprietor explains that it is a limited liability company, the corporate vehicle into which Mr Dean Gera has poured a lifetime of hard work and dedication in the field of hair-care and hair-dressing. The verbal elements ‘D’, ‘G’ and ‘DEAN GERA’, which comprise the mark, are the initials of the first and family name and the full name of Mr Dean Gera, who has been operating hair-dressing services and salons under his personal name – and the mark – since 2007.

It adds that ‘DEAN GERA’ is the brand that he has created for himself, using his name. Mr Gera hails from a family of hairdressers and hair professionals. He therefore chose to trade under his own name so that he could continue to honour the family name which is significant in hairdressing in Malta. Dean Gera has been using his own name to trade in Malta since 2007, and has been using the mark and the ‘DG Dean Gera’ elements as his brand. He has built a strong reputation, has had extensive press coverage, and has received franchising requests from other parts of Europe. This trajectory toward prospects of stepping into the wider European market led to the filing of the mark in 2017.

The proprietor explains that the contested mark has been used for much more than five years, and therefore the application for invalidity should be dismissed pursuant to Article 61 EUTMR.

According to Article 61 EUTMR, where the proprietor of an earlier EUTM or national trade mark has acquiesced in the use of the contested EUTM for a period of five successive years, while being aware of the use, the contested EUTM is not liable to be declared invalid, unless registration of the later EUTM was applied for in bad faith.

The aim of Article 61 EUTMR is to penalise the proprietors of earlier trade marks that have acquiesced, for a period of five successive years, in the use of a later EUTM while being aware of such use, by excluding them from seeking a declaration of invalidity of that trade mark, which will then therefore be able to coexist with the earlier trade mark (28/06/2012, T‑133/09, B. Antonio Basile 1952, EU:T:2012:327, § 32).

The burden of proof is on the proprietor of the contested EUTM to show that:

 the contested EUTM was used in the EU (or in the Member State where the earlier trade mark is protected) during a period of at least five successive years;

 the invalidity applicant was actually aware of this use (04/10/2018, T‑150/17, FLÜGEL / ... VERLEIHT FLÜGEL et al., EU:T:2018:641, § 34-35);

 although the invalidity applicant could have stopped the use, it nevertheless remained inactive (22/09/2011, C‑482/09, Budweiser, EU:C:2011:605, § 44). This is not the case where there was a license or distribution relationship between the parties, so that the invalidity applicant could not lawfully oppose use of the sign.

Consequently, for Article 61 EUTMR to be applicable, all three conditions must be fulfilled.

In the case at issue, none of the abovementioned circumstances have been documented by the EUTM proprietor. There are no documents proving that the contested mark has been used, that the applicant was aware of this use, or that the applicant remained inactive and did not stop the use although it could have.

Consequently, this claim by the proprietor must be dismissed.

Right to a personal name

The proprietor explains that Mr Gera set up the company ‘Dean Gera Haircare Limited’ in order to establish a corporate vehicle to take on the responsibilities of the growing business, and files a screenshot from the official database of all Maltese limited liability companies. According to this, Mr Gera is the sole director and sole shareholder of the company, which is the proprietor of the contested mark. Consequently, the company is solely his. Furthermore, he has used his own name as part of the name of the company.

The proprietor states that EUTM legislation allows for the use of one’s own name, and this cannot be more so than in relation to a personal name. Mr. Dean Gera should be allowed the use of his own name, in the same way as ‘Dolce’ and ‘Gabbana’, which are the surnames of two fashion designers. Mr. Gera must therefore be allowed to continue using his own name as his brand, since this is being done in accordance with honest business practices. He has never been influenced by ‘D&G’, and the existence of their brand was never a consideration when Mr. Gera chose to trade under his own personal name. The proprietor adds that all the salons operated by Mr Gera use the mark as their brand and, therefore, the link in the mind of the consumers is very clear.

The Cancellation Division agrees with the applicant when it states that the present invalidity proceedings have a mark as their object, and not a right to a name, and therefore this claim by the EUTM proprietor must be dismissed.

Coexistence of the two conflicting marks

According to the EUTM proprietor the two brands have been co-existing in the market for a long time and there has been (and will be) no likelihood of confusion between the marks, nor of any possible tarnishing or dilution of the D&G marks.

According to case-law,

… the possibility cannot be entirely dismissed that, in certain cases, the coexistence of earlier marks on the market could reduce the likelihood of confusion which the [Cancellation] Division and the Board of Appeal find exists as between two conflicting marks. However, that possibility can be taken into consideration only if, at the very least, during the proceedings before the EUIPO concerning relative grounds of refusal, the [proprietor of] the European Union trade mark duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the earlier marks upon which it relies and the intervener’s earlier mark on which the opposition is based, and provided that the earlier marks concerned and the marks at issue are identical.

(11/05/2005, T‑31/03, Grupo Sada, EU:T:2005:169, § 86)

Formal coexistence of certain marks in national or Union registries is not per se particularly relevant. It also needs to be proven that the marks coexist in the market, which could indicate that consumers are used to seeing the marks without confusing them. Last, but not least, the Office will in principle be restricted in its examination to the trade marks in conflict.

In the case at issue the EUTM proprietor has not filed any evidence regarding the actual coexistence of the marks on the market, let alone of the ‘dilution’ of the distinctive character of the applicant’s mark, which might be contrary to an assumption of likelihood of confusion. Therefore, in the absence of the appropriate evidence, this argument of the EUTM proprietor must be rejected as unfounded.

PROOF OF USE

According to Article 64(2) and (3) EUTMR (in the version in force at the time of filing of the invalidity application), 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 EUTM proprietor has not submitted the request for proof of use by way of a separate document as required by Article 19(2) EUTMDR.

Therefore, the request for proof of use is inadmissible pursuant to Article 19(2) EUTMDR.

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.

The application is based on more than one earlier trade mark. The Cancellation Division finds it appropriate to first examine the application in relation to the applicant’s international trade mark registration No 649 385.

a) The goods and services

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 3: Cosmetics in general, including perfumes, solid perfumes, essential oils, deodorants, soaps, liquid soaps, soaps, bubble bath products, talc, cosmetic lotions, hair lotions, gels, hair dyes, creams for the face, mascara, eyeliners, eye shadows, pencils for makeup, face powder, lipsticks, foundations, body creams, nail polish, nail hardeners, nail polish removers, oils and tanning creams, dentifrices, cosmetic kits.

The contested goods and services are the following:

Class 3: Hairspray; hair bleach; hair bleaches; hair tonic; hair wax; hair lighteners; hair cream; hair creams; hair rinses; hair colouring; hair pomades; hair mousses; hair mousse; hair glaze; hair gel; hair gels; hair mascara; hair oils; hair oil; hair emollients; hair conditioners; hair conditioner; hair moisturisers; hair texturizers; hair moisturizers; hair relaxers; hair shampoo; hair shampoos; hair cosmetics; hair balm; hair tonics; hair sprays; hair spray; hair lacquers; hair lacquer; hair nourishers; hair fixers; hair balsam; hair powder; hair liquids; hair serums; hair frosts; hair decolorants; hair masks; hair colourants; hair color; hair dyes; hair colorants; hair lotions; hair dye; hair lotion; hairstyling masks; hairstyling serums; hairdressing preparations; hair care lotions; hair bleaching preparations; baby hair conditioner; hair permanent treatments; hair moisturising conditioners; hair removing cream; hair color removers; hair colouring preparations; hair styling preparations; hair tinting preparations; hair protection gels; hair care preparations; hair care agents; hair styling gel; hair styling lotions; hair styling spray; hair styling waxes; hair care creams; hair protection lotions; neutralizing hair preparations; hair cleaning preparations; hair relaxing preparations; hair straightening preparations; hair fixing oil; hair-washing powder; hair protection creams; hair protection mousse; hair treatment preparations; hair care serums; hair care masks; hair styling gels; hair dyeing preparations; hair coloring preparations; cosmetic hair lotions; hair grooming preparations; hair conditioner bars; hair decolorant preparations; hair curling preparations; hair waving preparations; hair permanent wave kit; non-medicated hair shampoos; tints for the hair; hair strengthening treatment lotions; preparations for setting hair; oils for hair conditioning; hair rinses [shampoo-conditioners]; hair preparations and treatments; cosmetic hair dressing preparations; hair tonic [non-medicated]; cosmetic hair care preparations; hair dressings for men; gels for fixing hair; creams for fixing hair; hair piece bonding glue; styling paste for hair; shampoos for human hair; hair conditioners for babies; dyes for the hair; hair colouring and dyes; non-medicated hair lotions; bleaching preparations for the hair; wax treatments for the hair; adhesives for affixing false hair; false hair (adhesives for affixing -); mousses being hair styling aids; color-removing preparations for hair; styling gels for the hair; colouring lotions for the hair; styling sprays for the hair; non-medicated balm for hair; oil baths for hair care; conditioning preparations for the hair; conditioners for treating the hair; cosmetic hair regrowth inhibiting preparations; hair removal and shaving preparations; preparations for protecting coloured hair; products for protecting coloured hair; hair rinses [for cosmetic use]; hair tonic [for cosmetic use]; hair tonics [for cosmetic use]; preparations for permanent hair waves; waving preparations for the hair; bleaches for use on the hair; Japanese hair fixing oil (bintsuke-abura); wax strips for removing body hair; gels for use on the hair; conditioners for use on the hair; hair desiccating treatments for cosmetic use; hair preservation treatments for cosmetic use; refill packs for hair fixer dispensers; hair care creams [for cosmetic use]; hair care lotions [for cosmetic use]; cosmetics for the use on the hair; adhesives for false eyelashes, hair and nails; cosmetic preparations for the hair and scalp; hair care preparations, not for medical purposes; hydrogen peroxide for use on the hair; mousses [toiletries] for use in styling the hair; preparations for protecting the hair from the sun.

Class 41: Hairdressing instruction; educational seminars relating to hairdressing techniques; provision of courses of instruction in the removal of unwanted hair; arranging of beauty contests; teaching of beauty skills; educational seminars relating to beauty therapy; educational services relating to beauty therapy; educational services provided by beauty schools; arranging and conducting of beauty contests; educational services in the nature of beauty schools; arranging and conducting of classes; arranging and conducting of training workshops; arranging and conducting of educational events; arranging and conducting of educational courses; education services; educational services; training and education services; education and training services; educational and training services; education and instruction services; education services relating to fashion; education services relating to therapeutic treatments; education services relating to vocational training.

Class 44: Hairdressing; hair styling; hair cutting; hair implantation; hair replacement; hair weaving; hair treatment; hair restoration; haircare services; salons (hairdressing -); hairdressing salons; hairdressing services; hair salon services; hair cutting services; hair care services; hair implantation services; hair tinting services; hair coloring services; hair colouring services; hair curling services; hair perming services; hair straightening services; hair styling services; hair braiding services; hair treatment services; hair restoration services; salon services (hairdressing -); hairdressing salon services; hair dressing salon services; personal hair removal services; laser hair removal services; shampooing of the hair; hair salon services for women; hair salon services for men; hair salon services for children; advice relating to hair care; permanent hair removal and reduction services; cosmetic laser treatment for hair growth; cosmetic laser treatment of unwanted hair; services of a hair and beauty salon; personal therapeutic services relating to hair regrowth; cosmetic electrolysis for the removal of hair; services for the care of the hair; hair salon services for military service members; body waxing services for hair removal in humans; providing information in the field of hair styling; cosmetic treatment services for the body, face and hair; consultancy services relating to beauty.

The EUTM proprietor states that, while it is true that ‘D&G’ is a brand which does have some cosmetic and perfume lines, they are not active in the specialised industry in which the EUTM proprietor is involved – a niche industry of hair colour, treatments, and masks; wigs; hair-care tuition; and hairdressing services. It adds that: ‘(…) apart from perfumes, the use of the D&G brand in cosmetics is hardly known (…) The average consumer is not aware that D&G produce any other sort of cosmetics or specialised products. In fact, D&G appear to produce some cosmetics but not specialised products such as hair dyes (…) D&G have never released the type of product line which the contested mark will be covering, and the closest product one can find with a D&G trade mark on it is a body wash and shampoo combination (a 2-in-1 sort of product) which is sold in one of those assorted gift packs which includes one perfume bottle and a bottle of this shower gel/shampoo marketed as presents in Christmas time and Valentine’s Day. This was confirmed through the result of online searches via Google, and also of searches on specialist websites that sell beauty products. D&G do not produce hair treatments, hair shampoo and conditioner, nor do they give any hair-care treatments. Indeed, one would be surprised to see that D&G has created a line of products for the colouration of hair. D&G’s argument that these products are therefore substitutable for each other or in any way similar is therefore rejected: the average consumer does not go looking for a D&G perfume only to then buy hair gel by the same brand. That is not how the average consumer functions’.

The EUTM proprietor also adds that ‘DEAN GERA’ products are not found for sale in any perfumery or department store, but only in ‘DEAN GERA’ salons where no other commercial products are offered for sale, save for one highly specialised salon-only product, which is offered to customers due to a commercial relationship between the producer of said products and the owner. The stylists are trained at the Dean Gera Academy and they are given training in hair-care, hair styling, fashionable hairstyles and cuts. They attend this academy precisely because it is the Dean Gera Academy, since they want to learn from Dean himself, and benefit from his experience with Trevor Sorbie and other great names in the industry.

The EUTM proprietor argues as follows.

 The nature of the goods and services is that of hair treatment, as found sold at hair salons and specialised shops – and not at a pharmacy, department store or perfumery which is where D&G products are sold. The nature of hair mousse, hair gels or hair relaxers is completely different to makeup and shampoo.

 The intended purpose of the goods and services is, similarly, the proper care for the average consumer’s hair, with specialised treatments and salons, and the training of staff to work in such salons following the philosophy and guidelines created by the proprietor.

 The method of use of these goods and services is for them to be accessed only at specialised Dean Gera salons. For example, hair dye will be applied by a hair stylist, at the salon. This is unlike the method of use for D&G products, which are purchased at a department store or perfumery and then sprayed on the body by the average consumer multiple times. Most of the DEAN GERA goods and services are salon-only treatments, products and services offered by salon personnel. This is completely at odds with the D&G products.

 The goods and services are neither complementary nor in competition with those offered by D&G. The average consumer that intends to purchase a hair relaxer will not mistakenly enter the D&G section of a perfumery. Nor will an average consumer that intends to purchase a D&G perfume, but fails to find said product, purchase hair dye under the contested mark.

In this regard the Cancellation Division must clarify that, as the request for proof of use is inadmissible for the abovementioned reasons, the comparison of the goods and services must be based on the wording indicated in the respective lists of goods/services. Any actual or intended use not stipulated in the list of goods/services is not relevant for this comparison since it is not part of the assessment of actual confusion or infringement (16/06/2010, T‑487/08, Kremezin, EU:T:2010:237, § 71).

Contested goods in Class 3

The earlier international registration is registered for cosmetics in general, including … The term ‘including’ indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu-Tride, EU:T:2003:107).

As correctly pointed out by the applicant, all the contested goods in Class 3 (with the exception of adhesives for false eyelashes, hair and nails) fall within the general category of cosmetics, protected by the earlier international registration and, therefore, these goods are identical.

Adhesives for false eyelashes, hair and nails are similar to a low degree to cosmetics, as they usually coincide in producer, relevant public and distribution channels.

Contested services in Classes 41 and 44

In relation to the comparison of the goods and services at issue the applicant cites the conclusions of earlier oppositions (12/02/2019, B 3 028 688; 29/01/2019, B 2 962 127) which the Cancellation Division endorses.

Indeed, though by nature services are necessarily different from goods, in the case at issue the services are clearly complementary to the goods protected by the earlier international registration, in the sense that there is a close connection between them, as the one may be 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).

Moreover, the goods and services have the same purpose, are distributed through the same channels and target the same consumers, be they average consumers or professionals in the field of cosmetics. Indeed, it is common for hairdressers to offer their own product lines in their salons, and such goods can also form, together with their practical application, the subject matter of the contested educational services. Therefore, the goods and services are similar.

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.

The EUTM proprietor contends that, while the relevant public in relation to the goods are average consumers, the services target professionals (hair stylists and such like), and that both will have an enhanced degree of attention.

The Cancellation Division agrees with the first assertion but, as regards the second, a distinction must be made between the goods and the services, given that there is no reason to suppose that in relation to cosmetics in general or specific cosmetics (in the case of those protected by the contested mark) consumers will have an enhanced degree of attention.

Consequently, the goods found identical or similar to a low degree target average consumers with an average degree of attention, and the services found similar to an average degree mainly target the professional public with an enhanced degree of attention.

c) The signs

DG
Earlier trade mark	Contested trade mark

The relevant territories are Benelux, Germany, Spain, France, Croatia, Latvia, Portugal and Romania.

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).

The applicant argues that, because ‘DG’ is the dominant and distinctive element of the proprietor’s sign, and is identical to the applicant’s sign, the signs should be considered visually and aurally very similar, a fact that has been confirmed by several opposition decisions (inter alia, 20/11/2013, B 2 147 455; 09/06/2011, B 1 619 660). On the other hand, the EUTM proprietor argues that the marks are different due to the qualifying element ‘DEAN GERA’.

The Cancellation Division agrees with the applicant that the most dominant element in the contested mark is ‘DG’. However, both these initials and the verbal element ‘DEAN GERA’ are equally distinctive.

Visually, the signs coincide in the presence of the initials ‘DG’ and differ both in the stylization of the initials, and in the presence of the verbal element ‘DEAN GERA’ in the contested mark. However, given that the stylisation of the letters is not particularly striking, and that ‘DEAN GERA’ is less eye-catching than the coinciding initials, the degree of visual similarity is average.

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 common letters ‘D’ and ‘G’, and differs in the pronunciation of the verbal element ‘DEAN GERA’. However, taking account of the fact that the coinciding initials are more dominant, the level of aural similarity is average.

Conceptually, the combination of the letters ‘DG’ in the earlier international registration means nothing, while in the contested mark they reflect the initials of ‘DEAN GERA’, which will be perceived by a significant part of the relevant public as the name and surname of a person. Consequently, the marks are conceptually not similar.

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

d) Distinctiveness of the earlier mark

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

According to the applicant, 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 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.

e) Global assessment, other arguments and conclusion

The goods are partly identical and partly similar to a low degree, while the contested services are similar to an average degree to the earlier goods.

The signs are visually and aurally similar to an average degree while conceptually they are not similar. However, this lack of conceptual similarity is the product of the presence in the contested mark of two words that are less dominant in the image than the initials the marks have in common. These initials have a distinctive and independent role in the contested mark and fully reproduce the earlier international registration. Therefore, it is feasible to assume that the relevant consumers will attribute the same commercial origin to the goods and services, or think that they originate in companies with economic links. Given the proximity of the marks in their most dominant element this is the case even for goods that have been found similar only to a low degree, as account must be taken of the fact that average consumers only rarely have the chance to make a direct comparison between the different marks and must place trust in the imperfect picture of them that they have kept in mind. Moreover, it must be recalled that even consumers with a high level of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Therefore, the application is well founded on the basis of the applicant’s international trade mark registration No 649 385 designating, inter alia, Benelux, Germany, Spain, France, Croatia, Latvia, Portugal and Romania. It follows that the contested trade mark must be declared invalid for all the contested goods and services.

Since the cancellation application is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the earlier mark due to its extensive use as claimed by the applicant. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

As earlier international trade mark registration No 649 385 leads to the success of the application and the cancellation of the contested trade mark for all the goods and services against which the application was directed, there is no need to examine the other earlier right invoked by the applicant (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Natascha GALPERIN

María Belén IBARRA DE DIEGO

Judit NÉMETH

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.