OPPOSITION No B 3 018 358

Champion Products Europe Limited, Suite 8, Plaza 212, Blanchardstown Corporate Park 2, 15, Blanchardstown, Ireland (opponent), represented by Bugnion S.P.A., Largo Michele Novaro, 1/A, 43121 Parma, Italy (professional representative)

a g a i n s t

McGregor Sports and Entertainment Limited, Charter House, 5 Pembroke Row, Dublin 2, Ireland (applicant), represented by FRKelly, 27 Clyde Road, Ballsbridge, Dublin 4, Ireland (professional representative).

On 13/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 018 358 is partially upheld, namely for the following contested goods and services:

Class 9: Computer and video games; videos; protective clothing; teaching apparatus and instruments.

Class 25: Clothing; footwear; headgear.

Class 28: Games and playthings; gymnastic and sporting articles.

Class 41: Gymnasium services; provision of health club services; health and fitness training; education; provision of training; entertainment; sporting and cultural activities; gymnastic instruction.

2. European Union trade mark application No 17 136 615 is rejected for all the above goods and services. It may proceed for the remaining goods and services.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 136 615 for the word mark ‘ChampChamp’, namely against all the goods and services in Classes 9, 25, 28 and 41. The opposition is based on the following earlier rights:

 European Union trade mark registration No 11 296 852 ‘CHAMPION’ (word mark), in relation to which the opponent invoked Article 8(1)(b) EUTMR;

 European Union trade mark registration No 122 630 ‘CHAMPION’ (word mark), in relation to which the opponent invoked Article 8(1)(b) and Article 8(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.

a) The goods and services

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

EUTM No 11 296 852

Class 9: Optical, weighing and measuring apparatus and instruments; eyeglass; sunglasses; sports glasses; goggles for swimmers; spectacle cases and frames.

Class 28: Games, gymnastic and sporting articles and equipments not included in other classes.

Class 41: Organising sporting events; education, providing of training, entertainment and sporting activities.

EUTM No 122 630

Class 25: Articles of clothing, footwear and headgear; parts for the aforesaid goods.

The contested goods and services are the following:

Class 9: Apparatus for recording, transmission or reproduction of sound and images; recording discs; computer and video games; DVD’s; videos; protective clothing; compact discs; teaching apparatus and instruments.

Class 25: Clothing; footwear; headgear.

Class 28: Games and playthings; gymnastic and sporting articles.

Class 41: Gymnasium services; provision of health club services; health and fitness training; education; provision of training; entertainment; sporting and cultural activities; gymnastic instruction.

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 9

The contested computer and video games are similar to the opponent’s games (Class 28). These goods may have the same distribution channels and relevant public, as well as the same manufacturers.

The contested protective clothing is similar to the opponent’s goggles for swimmers since they may coincide in their relevant public, distribution channels and manufacturers and that they may be intended as protective equipment for the same types of sport activities, for instance swimming and diving.

The contested videos are similar to the earlier mark’s providing of training (Class 41) since these goods and services may be of a complementary character. They further coincide in their distribution channels and relevant public, as well as in their providers.

The contested teaching apparatus and instruments are similar to a low degree to the earlier mark’s education (Class 41) since they may be of a complementary character to various educational or training activities. These goods and services may generally coincide in their educational purpose and may target the same public.

However, the contested apparatus for recording, transmission or reproduction of sound and images; recording discs; DVD’s; compact discs are dissimilar to all the goods and services covered by the earlier marks because they have nothing in common. While the earlier marks are registered for various types of optical, weighing and measuring apparatus, articles for protective equipment, fashion, sport articles and games, as well various services, which are by nature different from the contested sign’s goods, the contested goods are computing goods and apparatus with other specific purposes. It is obvious that the above goods and services differ in their relevant publics, distribution channels and producers/providers. In addition, they are neither complementary to, nor in competition with, each other.

Contested goods in Class 25

The contested clothing; footwear; headgear are synonymic expressions of the earlier mark’s articles of clothing, footwear and headgear (EUTM No 122 630). Therefore, they are identical.

Contested goods in Class 28

The gymnastic and sporting articles; games are identically contained in the lists of goods (including synonyms). The contested playthings overlap with the earlier mark’s games. They are considered identical.

Contested services in Class 41

Entertainment; education services are identically contained in the lists of services.

The contested gymnasium services; provision of health club services; health and fitness training; provision of training; sporting activities; gymnastic instruction are identical to sporting activities covered by the earlier mark as they are identically included in or overlap with them.

The contested cultural activities are similar to the opponent’s education since they coincide in their educational purpose. Furthermore, they may have the same relevant public, distribution channels and providers.

b) Relevant public — degree of attention

In the present case, the goods and services found to be identical or similar to various degrees are directed at the public at large, as well as at athletes and sport people with professional knowledge or expertise. The degree of attention may vary from average to above average, depending on the specialised nature of the goods/services, the frequency of purchase and their price. By way of example, the contested protective clothing may need more consideration before purchase due to the exposure to risk factors, consequently, the degree of attention will be higher in relation to purchasing such goods.

c) The signs

CHAMPION	ChampChamp
Earlier trade marks	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 a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application for the entire European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57).

The word ‘champion’ of the earlier marks will be understood by English speakers as the English word used to refer to someone who has won first prize in a competition, contest or fight.

However, the verbal element ‘ChampChamp’, of the contested sign, has no apparent meaning for any part of the public. In relation to the opponent’s assumption that ‘ChampChamp’ would be perceived as two elements due to its graphical depiction, the Opposition Division recalls that word marks are protected for the verbal elements themselves and not for their graphical depiction. Consequently, the different appearance of the contested sign, in upper-, lower- or title-case letters, is immaterial and is not subject to differentiation, and so consumers cannot be assumed to mentally dissect the sign based on its depiction.

Notwithstanding the above, although a sign may be composed of a single verbal element, when perceiving a verbal sign the relevant consumers may tend to 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). In the present case, despite the depiction of the word mark, English speakers will be able to distinguish the repetition of the verbal element ‘Champ’, being a commonly used shortened version of the word ‘champion’ (information extracted from Collins dictionary on 07/05/2019 at https://www.collinsdictionary.com/dictionary/english/champ).

Since the above elements are meaningful for English-speakers, the Opposition Division finds it appropriate to focus the comparison of the signs exclusively on the English-speaking part of the public, for which a higher resemblance between the signs exists due to their conceptual link and thus the risk of confusion may be greater.

The words ‘champion’, the sole element of the earlier marks, and the element ‘champ’, present twice in the contested sign, will be perceived as having the meaning outlined above and pertaining to the concept of ‘champion’.

As the word ‘champion’ of the earlier marks has positive connotations in relation to some of the goods and services that are to a large extent competition related (games, entertainment, providing of training; sporting activities), this element is considered somewhat laudatory for those goods and services, and hence, has a lower than average degree of distinctiveness in relation to them. It has a normal degree of distinctiveness for the remaining goods and services for which it does not evoke any particular association with their specific nature or characteristics (clothing, footwear, headgear etc.).

Although the contested sign presents the concept in an unusual manner (making the sign distinctive to an average degree), this sign is a mere repetition of the abbreviation ‘Champ’ and to that extent it will likewise evoke similar associations to the earlier mark EUTM No 11 296 852 (in the context of the goods and services covered by it).

Visually and aurally, the signs coincide in the letter string ‘CHAMP’ present in the initial part of the earlier marks and twice in the contested sign. The signs differ in the last three letters ‘ION’ of the earlier marks and in the repetition of ‘CHAMP’ in the contested sign.

Consumers generally tend to focus on the beginning of a sign 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. In this case, the common sequence of letters (CHAMP) is found at the beginning of the earlier marks and would have, in principle, a greater impact than its differing final three letters (ION); moreover, ‘CHAMP’ constitutes the two verbal elements into which the contested mark would be mentally dissected.

Therefore, the signs are found visually similar to a below average degree as they coincide in their beginnings and are of a similar length, with no other components (apart from the different endings) essentially differentiating them visually. Furthermore, given the different structures and that the endings slightly change the overall rhythm of pronunciation, the signs have to be deemed also aurally similar to a below average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with the same concept, even reinforced in the contested sign, the signs are conceptually if not identical, at least highly similar.

d) Distinctiveness of the earlier marks

The opponent did not make any particular claim in relation to the distinctiveness of EUTM No 11 296 852. Consequently, with regard to the considerations in section c) of this decision, the distinctiveness of that earlier mark must be seen as lower than average for some of the goods and services, as mentioned above, and of a normal distinctiveness in relation to the remainder.

As far as EUTM No 122 630 is concerned, although the opponent claimed reputation for that right, the Opposition Division will refrain from assessing the reputational evidence at this stage and proceed attributing only a normal degree of distinctiveness to that earlier right in relation to the goods for which it is registered, goods in Class 25 (see Global assessment).

e) Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

With reference to the analysis in section a), the relevant goods and services are partly identical, partly similar to varying degrees and partly dissimilar. The relevant public will pay a normal to above average degree of attention by purchase of the said goods and services. Earlier mark EUTM No 122 630 is deemed to enjoy a normal degree of inherent distinctiveness for the purposes of the present assessment; by contrast EUTM No 11 296 852 is considered to have a lower degree of distinctiveness for some of the goods and services.

In that respect, for EUTM No 11 296 852, even if the degree of distinctive character of the verbal element ‘CHAMPION’ for some of the goods/services in question were to be seen as low and the earlier sign as a whole were seen as having a lower degree of distinctive character for the goods/services that it covers, it must be recalled that the finding of a weak distinctive character for the earlier sign does not necessarily prevent a finding that there is a likelihood of confusion.

Although the distinctive character of the earlier sign must be taken into account when assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Thus, even in a case involving an earlier sign of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (13/09/2010, T‑72/08, smartWings, EU:T:2010:395, § 45; 10/07/2012, T‑135/11, Cloralex, EU:T:2012:356, § 35‑37; 30/01/2014, C‑422/12 P, Cloralex, EU:C:2014:57, § 43-45; 27/02/2014, T‑25/13, 4711 Aqua Mirabilis, EU:T:2014:90, § 38).

In the present case, the signs are visually and aurally similar to a below average degree and conceptually they are at least highly similar, if not identical. These findings are made on account of the common verbal part ‘CHAMP-’ and its common use as an short version of the earlier mark’s sole element ‘CHAMPION’ by English speakers. Consequently, this verbal element, present twice in the contested sign, will generate the same concept as in the earlier mark.

With that regard the Opposition Division notes that despite the less compelling overall coincidences on a visual and aural level, the conceptual link between the signs is overwhelming and sufficient to cause confusion among consumers alluding to identical commercial origin. Even the fact that one of the earlier marks is endowed with a lower degree of distinctiveness in relation to some of the goods and services cannot be considered sufficient to outweigh the strength of that conceptual coincidence.

Finally, the Opposition Division recalls that 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 (e.g. sub-brands created for a new line of products/services). It is, therefore, conceivable that in this case the target public may believe that the similar or identical goods and services come from the same or economically linked undertakings, even if a high degree of attention is paid.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registrations No 11 296 852 and No 122 630. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. It is therefore not necessary to examine the perception of the signs from the perspective of 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 or similar to different degrees (including low) to those of the earlier trade marks.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful. In relation to them, the opposition will proceed on the basis of Article 8(5) EUTMR, invoked by the opponent in relation to the earlier European Union trade mark registration No 122 630 ‘CHAMPION’ (word mark).

REPUTATION — ARTICLE 8(5) EUTMR

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

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

 The signs must be either identical or similar.

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

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

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

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

a) Reputation of the earlier trade mark

According to the opponent, earlier mark EUTM No 122 630 has a reputation in the European Union, in particular in Italy, in connection with all the goods for which it is registered, namely articles of clothing, footwear and headgear; parts for the aforesaid goods (Class 25). In the present case, the contested trade mark was filed on 21/08/2017. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in the relevant territory prior to that date.

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

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

The opponent submitted the following evidence:

Enclosures A and B: A list containing names, locations and the year of opening of shops and outlets in Italy where the opponent’s ‘Champion’ products are offered, as well as a few pictures thereof.

Enclosure C: Extracts from the opponent’s official website (on which the mark is visible), showing a sample of the new collection of branded items in collaboration with over 50 US colleges. As the opponent states, its brand ‘has always been synonymous with American College sports’.

Enclosure D: Additional extracts from the opponent’s website bearing information about the opponent being the exclusive licensee of NBA (National Basketball Association) apparel for Europe (branded, inter alia, with its trade mark), in particular team kits, shooting shirts, authentic and replica jerseys and practice gear. As may be deduced from the extracts, NBA is also widely known in the territory of Europe, with tours taking place in various EU Member States.

Enclosure E: Excerpts from a market study (in Italian and bearing an English translation), commissioned by the opponent and carried out by Instituto CIRM Market Research (www.instituto-cirm.com) referring to the periods October 1998‑May 1999 and October 2000–May 2001. According to data from the survey, 300 people were interviewed and 87 % of them were familiar with the earlier mark ‘Champion’. As the opponent states, corroborated by the survey results, the opponent’s brand held 17.9 % of the market share of sports brands between 2000 and 2001.

Enclosure F: Copies of promotional materials referring to Olympic and international competitions in the period 1984‑1985, in which athletes in various disciplines were sponsored by the opponent and wore Champion-branded apparel.

Enclosure G: Various images and promotional materials forming part of the opponent’s advertisement campaigns in relation to its mark during the period 1999‑2012.

Enclosure H: Samples of catalogues with the product range (including apparel, footwear and headgear) offered under the trade mark ‘Champion’, dated between 2005 and 2016. According to the opponent, more than 1 000 copies of these catalogues were distributed each year.

Enclosure I: Samples of commercials broadcasted on the main national (Italian) channels between 2004 and 2009 regarding the opponent’s mark.

Enclosures L and Lbis: Copies of the decision by the Italian Court of Naples confirming the reputation of the earlier mark ‘Champion’ in relation to the respective goods, dated 2008 and 2014, provided together with translations in English.

Enclosure M: Extensive lists containing the opponent’s portfolio with ‘Champion’ trade marks registrations and applications in the national, European and international domains.

Enclosure N: Total marketing costs by Champion Europe Group, regarding the years 2002‑2016 and broken down into countries (including Belgium, France, Germany, Italy, Spain, Sweden and the United Kingdom), accompanied by total net sales for the same periods. The document was issued on 02/11/2016 and signed by the financial department of the opponent’s affiliation in Europe.

Enclosure O: Extracts from the opponent’s website www.champion-eu.com, dated 2017, illustrating Champion-branded apparel and footwear.

Enclosure P: A retail overview table containing figures for Champion-operated official stores and licensees in Europe (57 official stores in total in Italy).

Enclosure Q: A decision of infringement, in favour of the opponent, from the Court of Milan, together with translation in English, dated 2014.

Having examined the material listed above, the Opposition Division concludes that a certain degree of reputation acquired through the use of the earlier mark on the European market cannot be denied.

The abovementioned evidence indicates that earlier mark EUTM No 122 630 ‘Champion’ has been intensively used for a substantial period of time. Furthermore, the sales figures and the marketing efforts suggest that the trade mark has a consolidated position in the market. These efforts are reflected in the public awareness of the mark as corroborated by the independent survey (albeit from many years ago, 1999-2000), the more recent judgments of the Italian court and by the fact that the ‘Champion’ trade mark has been subject of sponsorship agreements that have led this trade mark to appear on the kit worn by famous athletes during important international events, such as the Olympic Games.

Consequently, the Opposition Division does not agree with the piecemeal approach undertaken by the applicant. This is because the pieces of evidence have to be evaluated as a whole, taking them in conjunction with each other. In this case the evidence considered in its totality indicates that earlier mark EUTM No 122 630 enjoys a certain degree of recognition among the relevant public in relation to sporting apparel, thus allowing the Opposition Division to conclude that it may enjoy a certain degree of reputation as well.

b) The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

c) The ‘link’ between the signs

As seen above, earlier mark, EUTM No 122 630, enjoys a certain degree of reputation and the signs are similar to some extent. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed by several judgments (23/10/2003, C‑408/01, Adidas, EU:C:2003:582, § 29, 31; 27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 66). It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 42):

 the degree of similarity between the signs;

 the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

 the strength of the earlier mark’s reputation;

 the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

 the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

The establishment of such a link, while triggered by similarity (or identity) between the signs, requires that the relevant sections of the public for each of the goods and services covered by the trade marks in dispute are the same or overlap to some extent.

According to the Court of Justice of the European Union,

It is therefore conceivable that the relevant section of the public as regards the goods or services for which the earlier mark was registered is completely distinct from the relevant section of the public as regards the goods or services for which the later mark was registered and that the earlier mark, although it has a reputation, is not known to the public targeted by the later mark. In such a case, the public targeted by each of the two marks may never be confronted with the other mark, so that it will not establish any link between those marks.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 48.)

The Court of Justice has also noted,

… that certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which those marks were registered. In such a case, it is possible that the relevant section of the public as regards the goods or services for which the later mark is registered will make a connection between the conflicting marks, even though that public is wholly distinct from the relevant section of the public as regards goods or services for which the earlier mark was registered.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 51‑52.)

In the present case, there is no overlap between the relevant sections of the public for the trade marks in dispute, as those goods are different in all respects. Each trade mark targets a different type of public. The contested goods: apparatus for recording, transmission or reproduction of sound and images; recording discs; DVD’s; compact discs, are aimed at consumers with an interest in electronic and computing devices; on the other hand, the earlier mark only enjoys recognition for goods in Class 25, namely, sporting apparel, which is aimed at the general public and athletes.

Given that the public for the contested mark is completely distinct from the relevant section of the public among which the reputation of earlier trade mark EUTM No 122 630 has been established, no association will be made between the signs. It is clear that production of these categories of goods is carried out by very distinct commercial undertakings and their distribution is through distinct channels and displaying places. In addition, the manufacturing of goods covered by Class 9 cannot be seen as a natural expansion of the commercial activity of a clothing manufacturing brand and the opponent did not make any reasonable statements in that regard.

Therefore, taking into account and weighing up all the relevant factors of the present case, in particular, that the parties operate in completely different market sectors and the above established degree of recognition of the earlier mark (which is improbable to extend beyond a manufacturer of sporting apparel), the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them. Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected.

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

María Clara IBÁÑEZ FIORILLO

Manuela RUSEVA

María del Carmen SUCH SÁNCHEZ

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.