OPPOSITION No B 3 007 534

Basil B.V., Ettenseweg 7A, 7071 AA Ulft, Netherlands (opponent), represented by Kneppelhout & Korthals N.V., Boompjes 40, 3011 XB Rotterdam, Netherlands (professional representative)

a g a i n s t

Bastien Miest, 217 route d'Arlon, 8011 Strassen, Luxembourg and William Evrard, 180 rue Sivry, 6740 Etalle, Belgium (applicants).

On 25/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 007 534 is partially upheld, namely for the following contested goods and services:

Class 12: Bicycles; bicycles; bicycles; tandem bicycles; push bicycles; motorbikes; vehicles; fittings and spare parts for vehicles, in particular for cycles, bicycles or motorcycles; bicycle tyres, wheels and spokes; training wheels for bicycles, in particular for learning how to cycle, in particular for children's bicycles; chains for driving bicycles; saddles and saddle covers for cycles, bicycles or motorcycles; toe clips and toe-clip chains for bicycles; bicycle carriers; stands and pedals for cycles, bicycles or motorcycles; handle bars for bicycles, cycles; pumps for cycles and bicycles; frames for bicycles, cycles; bicycle carriers; brakes for cycles, bicycles or motorcycles; tubeless tyres for cycles, bicycles; rims for cycles, bicycles or motorcycles; pedals for cycles, bicycles and motorcycles; racing bicycles; touring bicycles; children's bicycles; folding bikes; water bikes; electric bicycles; mountain bikes; toe clips for cycles and bicycles; chains and chain guards for cycles, bicycles or motorcycles; structural components for cycles and bicycles, in particular frames for cycles and bicycles; bicycle handlebar grips; cycle, bicycle or motorcycle seats for children; brake levers for cycles, bicycles or motorcycles; bells for bicycles, cycles; handlebar grips for cycles and bicycles; tires for children's bicycles; racing bicycles; toe straps for use on bicycles; air pumps for cycle, bicycle or motorcycle tyres; air pumps for bicycles for the inflation of tyres; saddle covers for cycles, bicycles or motorcycles; inner tubes for cycles, bicycles or motorcycles; patches for repairing the inner tubes of cycle, bicycle and motorcycle tyres.

Class 35: Retailing of cycles and accessories for cycles, bicycles, and accessories and spare parts for cycles, bicycles; retailing of bicycle wheels, training wheels for bicycles, bicycle frames, spokes and rims; retailing of bicycle pumps, repair kits for bicycles, patches, lights, reflectors and lamps for bicycles; retailing of saddle covers for bicycles, tyres, brakes and wheels for cycles, bicycles; retailing of chains for cycles, toe clips for cycles, brakes for cycle toe clips, and inner tubes; retailing of repair kits for inner tubes, patches, repair adhesive and gel for repairing inner tubes, grease for cycle chains, and cycle chains; retailing of pedals and automatic pedals; retailing of decorations for cycles; retailing of baskets for cycles; wholesaling of cycles, bicycles, and vehicles, and accessories for cycles.

2. European Union trade mark application No 17 040 924 is rejected for all the above goods and services. It may proceed for the remaining 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 17 040 924 for the word mark ‘BASWIL’. The opposition is based on European Union trade mark registration No 2 401 974 for the word mark ‘BASIL’. The opponent invoked Article 8(1)(b) EUTMR.

Preliminary remark

In its observations of 24/07/2018, the applicants requested that the contested application be restricted. However, pursuant to Article 8(8) EUTMDR, where the applicant wishes to restrict the contested application, it must do so by way of a separate document. The request must be separate from other submissions; although it may be filed simultaneously with other submissions, it must be presented separately (on a separate sheet).

In the present case, the request to restrict the application was included in the applicants’ observations. Consequently, it is rejected as inadmissible because it was not submitted by way of a separate document as required by Article 8(8) EUTMDR.

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.

a) The goods and services

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

Class 6: Metal baskets, including metal baskets for bicycles.

Class 11: Lighting, lights for bicycles.

Class 12: Cycles and bicycle parts and bicycle accessories, not included in other classes.

The contested goods and services are the following:

Class 12: Bicycles; bicycles; bicycles; tandem bicycles; push bicycles; motorbikes; vehicles; fittings and spare parts for vehicles, in particular for cycles, bicycles or motorcycles; bicycle tyres, wheels and spokes; training wheels for bicycles, in particular for learning how to cycle, in particular for children's bicycles; chains for driving bicycles; saddles and saddle covers for cycles, bicycles or motorcycles; toe clips and toe-clip chains for bicycles; bicycle carriers; stands and pedals for cycles, bicycles or motorcycles; handle bars for bicycles, cycles; pumps for cycles and bicycles; frames for bicycles, cycles; bicycle carriers; brakes for cycles, bicycles or motorcycles; tubeless tyres for cycles, bicycles; rims for cycles, bicycles or motorcycles; pedals for cycles, bicycles and motorcycles; racing bicycles; touring bicycles; children's bicycles; folding bikes; water bikes; electric bicycles; mountain bikes; toe clips for cycles and bicycles; chains and chain guards for cycles, bicycles or motorcycles; structural components for cycles and bicycles, in particular frames for cycles and bicycles; bicycle handlebar grips; cycle, bicycle or motorcycle seats for children; brake levers for cycles, bicycles or motorcycles; bells for bicycles, cycles; handlebar grips for cycles and bicycles; tires for children's bicycles; racing bicycles; toe straps for use on bicycles; air pumps for cycle, bicycle or motorcycle tyres; air pumps for bicycles for the inflation of tyres; saddle covers for cycles, bicycles or motorcycles; inner tubes for cycles, bicycles or motorcycles; patches for repairing the inner tubes of cycle, bicycle and motorcycle tyres.

Class 35: Retailing of cycles and accessories for cycles, bicycles, scooters, motorcycles, and accessories and spare parts for cycles, bicycles and motorcycles; retailing of bicycle wheels, training wheels for bicycles, bicycle frames, spokes and rims; retailing of bicycle pumps, repair kits for bicycles, patches, lights, reflectors and lamps for bicycles; retailing of saddle covers for bicycles or motorcycles, tyres, brakes and wheels for cycles, bicycles and motorcycles; retailing of chains for cycles, toe clips for cycles, brakes for cycle toe clips, and inner tubes; retailing of repair kits for inner tubes, patches, repair adhesive and gel for repairing inner tubes, grease for cycle chains, and cycle chains; retailing of pedals and automatic pedals; retailing of protective helmets for sports, motorcycle helmets, and helmets for cyclists; retailing of bags and suitcases, spectacles, cases for spectacles; retailing of reflective vests for protection, insulating bottles, flasks, water bottles and vacuum flasks, and water-bottle holders; retailing of medals, sports trophies and cups; retailing of clothing, footwear and headgear, clothing, footwear and belts for support, headgear for athletes, gloves, rainproof clothing, underwear and socks; retailing of games, toys and playthings, bags for sports, knee guards, elbow guards and protective padding for sports, and bicycles, cycles, motorcycles, cars, lorries and other vehicles in miniature form; retailing of covers designed for sports equipment, in particular covers for transporting cycles; retailing of decorations for cycles, saddlebags and baskets for cycles, bells, counters, revolution counters and anti-theft articles; retailing of foodstuffs and beverages for athletes; wholesaling of cycles, bicycles, scooters, motorcycles and vehicles, and accessories for cycles, clothing and articles for athletes; presentation of goods on all means of communication for retail; invoicing; administrative processing of purchase orders; advertising and sales promotion relating to goods and services provided and ordered via telecommunications media or electronic services; business promotion; promotional marketing; promotion of trips (advertising) and sports courses; promotional management of celebrities; consumers (commercial information and advice for -) [consumer advice shop].

Class 41: Entertainment; sporting and cultural activities; sports training; coaching (providing of training), in particular sports coaching; services of a sport trainer; sports tuition, coaching and instruction; training of sports coaches, in particular cycling coaches; organisation of sports competitions; timing of sports competitions, organisation of competitions, in particular in the field of sport; organisation and conducting of sports events and sporting competitions; writing of texts and articles, other than for publicity purposes, books and magazines, in particular in the field of sport and more particularly relating to cycling; publication of texts and articles, other than for publicity purposes, books and magazines, in particular in the field of sport and more particularly relating to cycling; photographic reporting; training workshops, in particular in the field of sport and more particularly relating to cycling; training courses; sports courses; providing and operating sports facilities; rental of sports gear and sporting equipment; providing of information relating to sports, in particular relating to cycling; entertainment relating to sport and sporting events.

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

The terms ‘in particular’ and ‘including’, used in both, the applicant’s and the opponent’s lists of goods and services, indicate that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, they introduce non-exhaustive lists of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

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 12

Before comparing the goods in the present Class, the Opposition Division would like to point that the original Dutch version of the earlier mark refers to “fietsen”, which literally and specifically means “bicycles” (plural) in Dutch (singular: “fiets”). Therefore and for the purpose of the present analysis, the Office can only consider that the term “cycles” from the English translation of the earlier mark in fact covers “bicycles” specifically. This interpretation is indeed confirmed by definitions from English dictionaries, such as the Cambridge dictionary, which defines “cycle” as the “short form of bicycle”. The comparison of goods in this class will therefore proceed on the basis of this interpretation.

The opponent´s cycles are identical to the contested bicycles (mentioned three times); tandem bicycles; push bicycles; racing bicycles (repeated); touring bicycles; children's bicycles; folding bikes; electric bicycles; mountain bikes, as they are either synonymous or included in the broad category of the opponent´s cycles.

The contested vehicles include, as a broader category, the opponent’s cycles. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Along the same line of reasoning as in the previous paragraph, the contested fittings and spare parts for vehicles, in particular for cycles, bicycles or motorcycles are identical to the opponent´s goods bicycle parts and bicycle accessories, not included in other classes.

The contested bicycle tyres, wheels and spokes; training wheels for bicycles, in particular for learning how to cycle, in particular for children's bicycles; chains for driving bicycles; saddles and saddle covers for cycles, bicycles; toe clips and toe-clip chains for bicycles; bicycle carriers; stands and pedals for cycles, bicycles; handle bars for bicycles, cycles; pumps for cycles and bicycles; frames for bicycles, cycles; bicycle carriers; brakes for cycles, bicycles; tubeless tyres for cycles, bicycles; rims for cycles, bicycles; pedals for cycles, bicycles; toe clips for cycles and bicycles; chains and chain guards for cycles, bicycles; structural components for cycles and bicycles, in particular frames for cycles and bicycles; bicycle handlebar grips; cycle, bicycle seats for children; brake levers for cycles, bicycles; bells for bicycles, cycles; handlebar grips for cycles and bicycles; tires for children's bicycles; toe straps for use on bicycles; air pumps for cycle, bicycle tyres; air pumps for bicycles for the inflation of tyres; inner tubes for cycles, bicycles; patches for repairing the inner tubes of cycle, bicycle tyres; saddle covers for cycles, bicycles are parts, components, accessories or fittings for cycles and bicycles. The opponent’s cycles and bicycle parts and bicycle accessories, not included in other classes and the contested goods mentioned above overlap. They are therefore identical.

The contested motorbikes are similar to the opponent’s cycles. They have the same purpose and nature. They usually coincide in relevant public.

The contested water bikes are vehicles in the form of a water bicycle for use over water, powered by energy (human or by way of a motor) and motion-inducing flotation devices. They are intended for sporting activities, tourism or water recreation. These goods and the opponent´s cycles are considered to be similar to a low degree as they can be manufactured by the same companies and target the same customers via similar distribution channels.

The contested saddles and saddle covers for motorcycles; stands and pedals for motorcycles; brakes for motorcycles; rims for motorcycles; pedals for motorcycles; chains and chain guards for motorcycles; motorcycle seats for children; brake levers for motorcycles; air pumps for motorcycle tyres; saddle covers for motorcycles; inner tubes for motorcycles; patches for repairing the inner tubes of motorcycle tyres contain some connections with opponent´s bicycle parts, not included in other classes. These goods may be sold via the same distribution channels to the same public who may expect these goods to be produced by, or under the control of, the 'original' manufacturer of the cycles. Therefore, these goods are similar to a low degree to the opponent’s cycles.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar (to a low degree) to those particular goods (05/05/2015, T-715/13, Castello (fig.) / Castelló y Juan S.A. (fig.) et al., EU:T:2015:256, § 33). Although the nature, purpose and method of use of these goods and services are not the same, they display similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

However, the goods covered by the retail services and the specific goods covered by the other mark must be identical to find a similarity between them, that is to say, they must be either the exact same goods or fall under the natural and usual meaning of the same category (e.g. the retail of sunglasses versus sunglasses or the retail of optical apparatus versus sunglasses).

Conversely, retail services relating to the sale of particular goods are not similar to other goods. In principle, goods are not similar to services. Too broad a protection would be given to retail services even if similarity were found when the goods sold via the retail services were highly similar to the goods covered by the other mark.

Given the above principles, it must be concluded that the contested retailing of cycles and accessories for cycles, bicycles, and accessories and spare parts for cycles, bicycles; retailing of bicycle wheels, training wheels for bicycles, bicycle frames, spokes and rims; retailing of bicycle pumps, repair kits for bicycles, patches, lights, reflectors and lamps for bicycles; retailing of saddle covers for bicycles, tyres, brakes and wheels for cycles, bicycles; retailing of chains for cycles, toe clips for cycles, brakes for cycle toe clips, and inner tubes; retailing of repair kits for inner tubes, patches, repair adhesive and gel for repairing inner tubes, grease for cycle chains, and cycle chains; retailing of pedals and automatic pedals; retailing of decorations for cycles; retailing of baskets for cycles; wholesaling of cycles, bicycles, and vehicles, and accessories for cycles are similar to a low degree to the following goods of the opponent, which are identical to or fall under the natural and usual meaning of the category of the goods covered by the contested retail services cycles and bicycle parts and bicycle accessories, not included in other classes. These goods and services are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Conversely, the contested services, namely: retailing of accessories for scooters, motorcycles, and accessories and spare parts for motorcycles; retailing of saddle covers for motorcycles, tyres, brakes and wheels for motorcycles; retailing of protective helmets for sports, motorcycle helmets, and helmets for cyclists; retailing of bags and suitcases, spectacles, cases for spectacles; retailing of reflective vests for protection, insulating bottles, flasks, water bottles and vacuum flasks, and water-bottle holders; retailing of medals, sports trophies and cups; retailing of clothing, footwear and headgear, clothing, footwear and belts for support, headgear for athletes, gloves, rainproof clothing, underwear and socks; retailing of games, toys and playthings, bags for sports, knee guards, elbow guards and protective padding for sports, and bicycles, cycles, motorcycles, cars, lorries and other vehicles in miniature form; retailing of covers designed for sports equipment, in particular covers for transporting cycles; retailing of saddlebags and bells, counters, revolution counters and anti-theft articles; retailing of foodstuffs and beverages for athletes; wholesaling of scooters, motorcycles and, clothing and articles for athletes and the opponent’s goods are not similar. Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of goods. Furthermore, goods and services have different methods of use and are neither in competition nor complementary.

Finally, as regards the contested presentation of goods on all means of communication for retail; invoicing; administrative processing of purchase orders; advertising and sales promotion relating to goods and services provided and ordered via telecommunications media or electronic services; business promotion; promotional marketing; promotion of trips (advertising) and sports courses; promotional management of celebrities; consumers (commercial information and advice for -) [consumer advice shop], they are considered dissimilar to all the opponent’s goods, as they have different purposes, methods of use, distribution channels and relevant publics.

Contested services in Class 41

The contested services are related to entertainment, publishing and sports. These services are considered dissimilar to all the opponent’s goods, as they have different purposes, methods of use and distribution channels. The fact that some of the opponent’s goods (Class 12) relate to the field of some of the contested services (eg: training workshops, in particular in the field of sport and more particularly relating to cycling) is not sufficient in order to find similarity between those.

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 and similar to different degrees are directed at the public at large, and also at professionals. The relevant public’s degree of attention towards the goods and services is likely to vary according to the category of goods and services in question, ranging from average to high depending on the nature and the price of the goods and services.

c) The signs

BASIL	BASWIL
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 earlier mark ‘BASIL’ will be understood in part of the EU. It has a meaning in English for example (“Basil is a strong-smelling and strong-tasting herb that is used in cooking, especially with tomatoes”, extracted at Collins Dictionary on 14/01/2019 at https://www.collinsdictionary.com/es/diccionario/ingles/basil).

It must be borne in mind that conceptual differences between the marks often counteract other similarities if at least one of the two signs at issue has a clear and specific meaning (22/06/2004, T-185/02, Picaro, EU:T:2004:189, § 56; 12/01/2006, C-361/04 P, Picaro, EU:C:2006:25, § 20). The Opposition Division will therefore assess the signs from the perspective of the public that does not understand the meaning of the word ‘BASIL’, such as the Spanish, Italian and Portuguese-speaking consumers, as this is the most advantageous scenario for likelihood of confusion to arise.

As mentioned above, the earlier mark is meaningless for the relevant public and therefore it is distinctive. The same reasoning applies to ‘BASWIL’; it has no meaning for the relevant public and is therefore distinctive.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

Visually and aurally, the signs coincide in the letters ‘BAS-IL’. The signs have almost identical lengths. They only differ in the additional ‘W’ of the contested sign which falls in the middle where it can easily be overlooked, contrary to the applicants’ arguments. Furthermore, the beginning of a sign has a significant influence on the general impression made by the mark (judgments of 15/12/2009, T-412/08, Trubion, EU:T:2009:507, § 40; 25/03/2009, T-109/07, Spa Therapy, EU:T:2009:81, § 30). In the present case, they coincide in the first three letters and the last two. Therefore, they are visually and phonetically similar to a high degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 is “famous for its bicycle crates, bicycle baskets and multifunctional (bicycle) bags but also markets other accessories for bicycles, such as fastening systems, saddle covers, bells and front carriers”.

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.

e) Global assessment, other arguments and conclusion

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

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T-443/12, Ancotel, EU:T:2013:605, § 54).

The Court has set out the essential principle that evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C 39/97, Canon, EU:C:1998:442, § 17). In the present case, the low degree of similarity between some of the goods and services, together with the degree of similarity between the marks, will have to be taken into account when assessing the likelihood of confusion between the marks.

The goods and services are identical, similar to different degrees and dissimilar.

The signs are visually and aurally similar to a high degree. The conceptual aspect does not influence the assessment of the similarity.

Taking into account the notion of imperfect recollection and the earlier mark’s normal degree of distinctiveness for the public concerned, it must be held that, given the overall highly similar impressions created by the signs and the identity and similarity (to different degrees) between the goods and services covered, a likelihood of confusion between the signs for at least the Spanish, Portuguese and Italian-speaking parts of the public (even if highly attentive) exists for some of the contested goods and services. 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. Given that a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application, there is no need to analyse the remaining part of the public.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical and similar to different degrees to those of the earlier trade mark. This finding is also applicable for the goods and services with a low degree of similarity because the similarity between the signs is high enough to lead to a likelihood of confusion with regard to these goods and services too.

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

The applicants put forward that they created their business four years ago and they submit detailed comments on their company and its investments. These arguments of the applicants must be set aside as irrelevant for the purposes of the present proceedings.

The right to an EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings. Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts that happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM, are earlier than the applicant’s EUTM.

Since the opposition is partially 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 opposing mark due to its reputation as claimed by the opponent and in relation to identical and similar goods and services. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

Likewise, there is no need to assess the claimed enhanced degree of distinctiveness of the opposing marks in relation to dissimilar goods and services, 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.

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

Denitza STOYANOVA-VALCHANOVA

Gonzalo BILBAO TEJADA

Swetlana BRAUN

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.