OPPOSITION No B 2 979 816

Biotherm S.A., Roc Fleuri, 1 rue du Ténao, 98000 Monaco, Monaco (opponent), represented by Carlos Polo & Asociados, Profesor Waksman, 10, 28036 Madrid, Spain (professional representative)

a g a i n s t

Bellinos, Ettlinger Straße 43, 75210 Keltern, Germany (applicant).

On 19/09/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 979 816 is upheld for all the contested goods.

2. European Union trade mark application No 17 124 603 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 620.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 124 603 ‘BIOTREAM’. The opposition is based on, inter alia, international trade mark registration No 198 936 ‘BIOTHERM’ designating Austria, Benelux, Croatia, the Czech Republic, Germany, Hungary, Italy, Romania, Slovakia, Slovenia and Spain. The opponent invoked Article 8(1)(b) and (5) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s international trade mark registration No 198 936 ‘BIOTHERM’ designating Spain, since this is the scenario in which confusion is most likely to arise, which is the best‑case scenario for likelihood of confusion to arise, as explained below.

1. The goods

The goods on which the opposition is based are, after a limitation, the following:

Class 3: Beauty products.

The contested goods are the following:

Class 3: Cosmetics; cosmetic pencils; sun protecting creams [cosmetics]; nail base coat [cosmetics]; nail tips [cosmetics]; nail hardeners [cosmetics]; sun-tanning gels; eyelid shadow; sun bronzers; skin masks [cosmetics]; skin whitening preparations [cosmetic]; suntanning oil [cosmetics]; skin care lotions [cosmetic]; decorative cosmetics; fluid creams [cosmetics]; sun care preparations; moisturising preparations; concealers; liners [cosmetics] for the eyes; facial washes [cosmetic]; lip stains [cosmetics]; bubble bath; cosmetic kits; cosmetics containing hyaluronic acid; cosmetics containing keratin; cosmetics containing panthenol; cosmetics for children; cosmetic foams containing sunscreens; cosmetic dyes; cosmetics and cosmetic preparations; impregnated cleaning pads impregnated with cosmetics; impregnated cloths for cosmetic use; body moisturisers; cosmetic preparations for bath and shower; refill packs for cosmetics dispensers.

All the contested goods are included in the broad category of the opponent’s beauty products, which refer to any product intended to improve a person’s appearance. Therefore, they are identical.

2. Relevant public — degree of attention

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

In the present case, the goods found to be identical are directed at the public at large.

The degree of attention is considered to be average.

3. The signs

BIOTHERM	BIOTREAM
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 earlier trade mark is a one-word mark. The word ‘BIOTHERM’ has no meaning as such for the relevant public. According to settled case-law, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58).

Nowadays, the prefix ‘BIO’ is widely used in commerce to refer to organic and/or natural and environmentally friendly products. This has been confirmed by the General Court, which has held that the term ‘bio’ is used on the market to indicate that the goods in question contribute to environmental sustainability, that they use natural products or that they have been produced organically (10/09/2015, T‑610/14, BIO organic, EU:T:2015:613, § 17; 21/02/2013, T‑427/11, Bioderma, EU:T:2013:92, § 45‑46). Moreover, the element ‘BIO’ is an abbreviation derived from the word ‘biológico’ (‘biological’ in English). Therefore, it can reasonably be assumed that the relevant part of the public will readily discern the prefix ‘BIO’ as referring to ‘biological’ or ‘life’ or to organic and natural products. In particular, in relation to the goods in question, the relevant part of the public will immediately grasp the meaning of the prefix ‘BIO’ in the earlier trade mark and consequently will split the earlier trade mark into two components, ‘BIO’ and ‘THERM’.

Bearing in mind the nature of the goods in question, it is considered that the element ‘BIO’ is non-distinctive for the relevant goods, as it indicates that they are of organic origin and/or are produced using natural methods. The component ‘THERM’ has no meaning for the relevant part of the public and therefore is of average distinctiveness.

The relevant part of the public will also perceive the prefix ‘BIO’ in the contested sign and consequently will split it into two components: ‘BIO’ and ‘TREAM’. The considerations as regards the perception and the distinctiveness of the prefix ‘BIO’ in the earlier sign on the part of the relevant public apply equally to the contested sign. The remaining component, ‘TREAM’, is meaningless and therefore of average distinctiveness for the relevant goods.

Visually, overall the signs have identical structures; both are one single word made up of eight letters. They coincide in the majority of their letters, namely ‘BIOT*E*M’, placed in the same order. Both signs also contain the letter ‘R’, but it is not in the same position in the signs. Consequently, the signs differ in the position of this letter, ‘R’, and in the differing letters ‘H and ‘A’, present in the earlier trade mark and in the contested sign, respectively.

According to settled case-law, in word signs or in signs containing a verbal element the first part is generally the one that primarily catches the consumer’s attention and, therefore, will be remembered more clearly than the rest of the sign. This means that in general the beginning of a sign has a significant influence on the general impression made by the mark (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). Both signs begin with the prefix ‘BIO’, which, as explained above, is non-distinctive for the relevant goods. Therefore, although it appears at the beginnings of the signs, it will not be viewed by consumers as the most distinctive part. However, the remaining components of the signs, ‘THERM’ and ‘TREAM’, identically coincide in three letters placed in the same positions, including their first letters, ‘T’.

Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛BIOT*E*M’, present identically in both signs. The signs also coincide in the sound of the letter ‘R’, although this letter is not in the same position in each sign. The letter ‘H’ in the earlier mark is silent. As explained above, ‘BIO’ is non-distinctive for the relevant goods; therefore, although it appears at the beginnings of the signs, it will not be viewed by consumers as the most distinctive part. The pronunciation of the signs differs in the sound of the letter ‘A’ of the contested sign.

Therefore, the signs are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Although the signs as a whole do not have any meaning for the relevant part of the public, the element ‘BIO’, included in both signs, will be associated with the meaning explained above. However, this element is non-distinctive for the relevant goods. As the public will not attribute any concept to the remaining elements ‘THERM’ and ‘TREAM’, of the earlier mark and the contested sign respectively, a conceptual comparison is not possible. Therefore, 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.

4. Distinctiveness of the earlier mark

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

According to the opponent, the earlier trade mark has a reputation in, inter alia, Spain in connection with all the goods for which it is registered. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 18).

The opponent submitted evidence to support this claim. As the opponent requested that certain commercial data contained in the evidence be kept confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data. The evidence consists, in particular, of the following documents:

• Document 1: declaration signed by the Intellectual Property General Counsel of the L’Oreal Group confirming that ‘BIOTHERM’ is a 100% subsidiary company of the L’Oreal Group and including:

- turnover figures for and number of units sold of the range of cosmetic, skin care and beauty products identified with the trade mark ‘BIOTHERM’ in Spain during the years 2015, 2016 and 2017 with the amounts expressed in thousands of euros;

- advertisements/articles from Spanish magazines in relation to cosmetic, skin care and beauty products identified with the trade mark ‘BIOTHERM’ and dated between 2013 and 2018.

• Document 2: ‘Webs & Images’

• printouts/screenshots from ‘BIOTHERM’ websites:

http://www.biotherm.com/index.aspx

http://www.biotherm.com/about-biotherm/index.aspx

https://www.biotherm.es/

• results of a Google search for ‘BIOTHERM’ images (five pages).

• Document 3: trade mark rankings/recognitions

- brand studies, reports and articles in which the opponent’s ‘BIOTHERM’ trade mark is ranked or awarded;

- BrandFinance Top 50 Cosmetics Brands for 2011, 2012, 2013, 2014 and 2015;

- ‘WLA World’s TOP 10 Cosmetics’ (of the World Luxury Association);

- ‘10 French Cosmetics Brands You Should Know’, dated 26/03/2018;

- the winners of the 2017 Glamour Belleza Awards;

- Awards 2016 — Best Business Measure; the first prize was awarded to ‘BIOTHERM’.

• Document 6: copies of the relevant pages of the Spanish publication Quién Es Quién? Anuario de la industria de la Perfumeria y Cosmética en Espana (Who is Who? Yearbook of the Perfumery and Cosmetics Industry in Spain), specifically from the section entitled ‘Commercialised Trademarks’, for the years 2014 to 2018. This document cites ‘BIOTHERM’ as a trade mark commercialised for face and body treatments for women and men, and for solar products.

• Document 7: copies of the relevant pages of the Spanish publication Diccionario de la cosmética de tratamiento (Dictionary of cosmetic treatments) for the years 2014, 2015 and 2017. It refers to trade marks sold for face cosmetics, body cosmetics, men’s cosmetics and solar cosmetics. It includes a range of products marketed under the mark ‘BIOTHERM’.

• Document 8: results of a Google search for ‘BIOTHERM’, limited to Spain and dated between 17/08/2012 and 16/08/2017:

http://theluxonomist.es/2015/07/27/un-angel-de-victorias-secret-en-el-aguade-biotherm/the-luxonomist Candice (27/07/2015);

http://www.revistavpc.es/noticias-del-sector/2708-shiseido-lanza-su-propioblog.Html

http://www.europapress.es/chance/gente/noticia-david-beckham-derrochaelegancia-visita-espana-mano-biotherm-20170621093900.html (21/06/2017);

http://marketingdeportivomd.com/beckham-firma-con-biotherm/ (17/05/2016);

http://www.revistagq.com/gqtv/la-buena-vida/videos/david-beckham-parabio-

therm/2130 (09/05/2016);

http://mistermoda.com/categorias/celebridades/page/5/ (10/05/2015);

http://hfhomme.com/pasos-basicos-biotherm-homme/ (19/07/2017);

https://www.poprosa.com/espana/david-bechkam-vuelve-a-madrid-y-miradquien-esta-en-su-nueva-campana

https://www.trendencias.com/modelos/ariadne-artiles-nos-da-una-leccion-deestilo-pijamero-con-su-ultimo-look-en-madrid (21/06/2017);

http://www.abc.es/summum/estilo/belleza/abci-david-beckham-perfectorequiere-comienzo-perfecto-201706211351_noticia.html (23/06/2017);

http://www.beautyetc.es/luca-dotto-nueva-imagen-de-biotherm-homme/ (2014);

http://acentoenlace.es/project/biotherm/ (10/12/2015);

https://blogdemaquillaje.com/2014/01/bixente-lizarazu-biotherm.html (2014);

https://beautyvictim.com/2011/01/el-club-de-las-probadoras-skinergetics-2/ (2011);

http://www.revistaohlala.com/1647147-las-10-embajadoras-de-la-modamas-conocidas (2013-2014);

http://www.thehotmesscorner.com/2015/01/skin-glow-skin-best-elaceite.html?m=1 (2015);

https://www.elllobregat.com/noticia/12513/no-solo-cine/que-ha-pasadoeste-julio-en-cuestion-de-belleza-hacemos-memoria-contigo.html (03/08/2016);

http://hombrechic.com/personaje-josef-ajram-is-a-hombrechic-because-helives-like-a-man/#.Wrud5S5uaUl (09/10/2012);

http://www.diarioinformacion.com/vida-y-estilo/modabelleza/2016/03/16/errores-cometen-hombres-cuidarse-piel/1739778.html (16/03/2016);

https://www.lavozdegalicia.es/noticia/firmas/2012/01/14/consumidoresmasivos-cosmeticos/0003_201201G14P34991.htm (14/01/2012);

http://www.tiempodehoy.com/ultimas-noticias/david-beckham-visita-madridcomo-embajador-de-biotherm-homme (22/06/2017);

https://www.bezzia.com/las-mejores-cremas-hidratantes/ (13/01/2018);

http://www.lavanguardia.com/vida/20170606/423233137748/comunicadobiotherm-

water-lovers-celebra-el-dia-mundial-de-los-oceanos.html (06/06/2017);

http://www.nosotras.com/belleza/producto-estrella-blue-therapy-cream-oilde-biotherm-535273 (18/09/2016);

http://blogs.lavanguardia.com/que-llevas/novedades-de-biotherm-paramujer-96293 (08/03/2015);

https://www.hola.com/belleza/actualidad/galeria/2017032992381/cosmeticos-masvendidos/4/ (29/03/2017);

https://elpais.com/elpais/2017/05/04/escaparate/1493921247_471891.html (07/05/2017);

http://www.huffingtonpost.es/2017/05/26/el-ranking-de-la-ocu-de-cremassolares-que-mejor-protegen_a_22110706/ (26/05/2017);

http://www.elmundo.es/yodona/2012/01/20/moda/1327050762.html (20/01/2012);

http://www.elmundo.es/yodona/belleza/2017/07/17/59636adce5fdea71708b46e9.htm (17/07/2017);

https://fashion.hola.com/belleza/2017061363327/trucos-moda-bellezaverano-ariadne-artiles/ (13/06/2017);

http://www.elmundo.es/yodona/belleza/2017/05/15/5915dbe9e2704e39188b4581.

html (15/05/2017);

http://www.mujerhoy.com/vivir/fitness/201709/16/estas-reglas-beauty-gym-

20170914170908.html (16/09/2017);

http://www.nosotras.com/belleza/la-nueva-linea-de-biotherm-paratreintaneras-399617 (06/02/2014);

http://www.nosotras.com/belleza/cremas-de-noche-para-un-cutis-perfectopor-la-manana-442944 (02/12/2014);

http://www.nosotras.com/belleza/combate-los-primeros-signos-de-la-edad-458060 (23/02/2015);

http://beautyblog.es/skin-best-biotherm (17/03/2014);

http://bellezaenvena.com/2014/01/skin-best-de-biotherm-la-nueva-lineade-rostro-para-treintaneras/ (21/01/2014);

https://stylelovely.com/makeupbymaryland/2014/10/09/biotherm-skin-bestpiel-joven-a-cualquier-edad/ (09/10/2014);

http://www.glamour.es/belleza/tratamientos/galerias/los-25-beauty-oilspreferidos-de-glamour/10972/image/824183 12/02/2015

https://blogdemaquillaje.com/2015/02/aceite-skin-best-liquid-glow-debiotherm

http://www.shopperinthecity.es/2014/02/nueva-gama-skin-best-debiotherm. html (23/02/2014);

http://www.mimosparamama.com/skin-best-de-biotherm-perfeccion-yprevencion-anti-edad/ (31/03/2014);

https://stylelovely.com/checosa/2014/02/probando-biotherm-skin-best (26/02/2014);

http://www.natypagebeauty.es/2015/09/cc-cream-skin-best-de-biotherm-bynaty.

Html

http://www.maquiyonkis.com/cc-cream-skin-best-de-biotherm/ (17/03/2014);

http://www.locaporlostacones.com/2014/03/completa-linea-paratreintaneras-skin.html (28/03/2014)

https://nefertitineferu.com/2015/07/30/skin-best-eyes-biotherm/ (30/07/2015);

http://www.glamour.es/belleza/life-trends/articulos/las-edades-de-labelleza-cuando-usar-la-primera-anti-arrugas/22630 (17/12/2015).

• Document 9: examples of some of the products marketed/sold through online Spanish shops under the trade mark ‘BIOTHERM’: https://www.perfumeriajulia.es/biotherm?gclid=EAIaIQobChMIwvXmueK72QIVBLcbCh2JwwKdEAAYAiAAEgLhS_D_BwE

https://www.pacoperfumerias.com/biotherm

https://www.amazon.es/Biotherm/s?ie=UTF8&page=1&rh=i%3Aaps%2Ck%3ABiotherm

https://www.latiendadirecta.es/es/belleza/biotherm.htm#

https://www.perfumesparis.com/108-biotherm

https://www.druni.es/biotherm.html

https://www.elcorteingles.es/biotherm/perfumeria/

https://www.notino.es/biotherm/?f=1-3-201&ppcbee-adtext-variant=D+-+zna%C4%8Dky+-+ostatn%C3%AD+-+90+dn%C3%AD+na+vr%C3%A1cen%C3%AD&gclid=EAIaIQobChMIwvXmueK72QIVBLcbCh2JwwKdEAMYAiAAEgK0RvD_BwE

https://www.shopalike.es/belleza/biotherm/?p=1o3&gclid=EAIaIQobChMIwvXmueK72QIVBLcbCh2JwwKdEAMYAyAAEgKPzvD_BwE&c=89916498169&mt=b&k=%20biotherm&agid=5847435289

https://douglas.es/b/biotherm

https://www.aromas.es/marcas/biotherm/00004

https://www.perfumestintin.com/es/99156-comprar-online-biotherm

https://www.tiendasagatha.com/es/81_biotherm

https://www.espaiaroma.com/s/facial+biotherm/page/2

https://www.perfumeriasabina.com/es/17_biotherm?p=3

https://www.fundgrube.es/es/cosmetica/biotherm.html

Having examined the material listed above, the Opposition Division concludes that the earlier trade mark has acquired a high degree of distinctiveness through its use on the market.

As far as the witness statement is concerned, Article 10(4) EUTMDR (formerly 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 proof of use. 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, 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, attached to the statement, to see whether or not the contents of the declaration are supported by the other items of evidence.

The opponent submitted a vast amount of documentation as proof of the reputation of the earlier trade mark. The evidence includes a large number of press articles, publications, and screenshots from the opponent’s websites and third parties’ websites, as well as advertising materials and documentation regarding awards. The earlier mark appears abundantly in these materials. Some of the materials originate from the opponent, such as the witness statement itself and the screenshots from the opponent’s websites; however, their findings are supported by the large number of press articles and publications from independent sources, as well as the evidence of the brand’s recognition confirmed by awards.

It is clear from the evidence that the sign is actively used on the cosmetics market in Spain and it is evident that the commercial volume and sales figures are significant and had been for some years prior to the filing of the contested mark (17/08/2017). Although the exact figures cannot be referred to for confidentiality reasons, the figures from 2015 to 2017 are impressive.

Furthermore, the evidence also shows that ‘BIOTHERM’ products are very popular, not only achieving high sales volumes, but also being highly rated by professionals and industry publications (document 3). There are specific examples in the evidence, including from independent sources, such as the magazines Elle, Hola and Marie-Claire and the national newspapers El País, El Mundo and ABC, that support the opponent’s claims that ‘BIOTHERM’ is among the world’s leading cosmetics brands. The evidence supports the opponent’s assertions that its cosmetic products are perceived as high quality, luxury and innovative. The evidence also demonstrates that the sign and the cosmetics marketed under it are frequently linked to and advertised by celebrities, and that the brand is connected to ‘socially conscious’ projects and initiatives.

Although no invoices or market surveys have been submitted, it is clear from the evidence that the earlier mark ‘BIOTHERM’ has been subject to long-standing and intensive use and that it is generally known in the relevant market, where it enjoys a consolidated position among the leading brands, as attested by diverse sources, including relevant independent press coverage. The turnover figures, the trade mark rankings from independent sources, the publications with numerous references to the success of the brand, the positive evaluations by independent third parties and the investments made in advertising the products using celebrities known worldwide all unequivocally show that the opponent’s mark enjoys a high degree of recognition among the relevant public.

5. Global assessment, other arguments and conclusion

According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings, constitutes a likelihood of confusion (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29). The likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 16). In addition, 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 goods are identical. They target the general public. The degree of attention is average. The signs are visually similar to an average degree and aurally similar to an average degree. A conceptual comparison is not possible. The earlier mark is deemed to have a high degree of distinctiveness.

The signs have identical structures and numbers of letters. In addition, the signs coincide in most of the letters of the words ‘BIOTHERM’ and ‘BIOTREAM’. The prefix ‘BIO’, which appears at the beginnings of these words, is non-distinctive for the relevant goods. However, the remaining letters of the signs, ‘THERM’ and ‘TREAM’, also coincide to a certain extent, since they have three letters in the same order and another coinciding letter in a different position.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s international registration No 198 936 ‘BIOTHERM’ designating Spain. It follows that the contested trade mark must be rejected for all the contested goods.

As this earlier right leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.

COSTS

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

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

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (formerly Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Inés GARCÍA LLEDÓ

Richard BIANCHI

Marta GARCÍA COLLADO

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.