OPPOSITION No B 3 020 149

Bormioli Rocco S.r.l., Viale Martiri della Libertà 1, 43036 Fidenza (Parma), Italy (opponent), represented by Bugnion S.p.A., Largo Michele Novaro 1/A, 43121 Parma, Italy (professional representative)

a g a i n s t

S. Malhotra & Co. AG, Haldenstrasse 5, 6340 Baar, Switzerland (applicant), represented by Sonia del Valle Valiente, c/ Miguel Angel Cantero Oliva 5, 53, 28660 Boadilla del Monte (Madrid), Spain (professional representative)

On 28/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 020 149 is partially upheld, namely for the following contested goods:

Class 3: Bath preparations; body cleaning and beauty care preparations; cleaning and fragrancing preparations; deodorants and antiperspirants; essential oils and aromatic extracts; hair preparations and treatments; hair removal and shaving preparations; household fragrances; laundry preparations; make-up; oral hygiene preparations; perfumery and fragrances; skin, eye and nail care preparations; soaps and gels; toiletries; abrasives; cosmetics.

2. European Union trade mark application No 17 217 911 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 217 911 for the word mark ‘LE QUATTRO STAGIONI’. The opposition is based on European Union trade mark registration No 3 606 861 for the word mark ‘QUATTRO STAGIONI’ and on European Union trade mark registration No 3 606 852 for the figurative mark . 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.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 3 606 861.

a) The goods

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

Class 6: Caps of metal for containers, moulds of metal for the manufacture of articles of glass; sealing caps of metal for bottles.

Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); glassware, porcelain and earthenware (not included in other classes); articles in glass including plates, bottles, vases, glasses, decanters, food containers of glass, goblets, cuplets, salad bowls, trays, cups, coffee cups; articles of tableware.

The contested goods are the following:

Class 3: Bath preparations; Body cleaning and beauty care preparations; Cleaning and fragrancing preparations; Deodorants and antiperspirants; Essential oils and aromatic extracts; Hair preparations and treatments; Hair removal and shaving preparations; Household fragrances; Laundry preparations; Make-up; Oral hygiene preparations; Perfumery and fragrances; Skin, eye and nail care preparations; Soaps and gels; Toiletries; Abrasives; Cosmetics.

Class 14: Precious metals; Alloys of precious metal; Jewellery; Precious stones; Chronometric instruments; semi precious stones; Horological instruments.

Class 18: Leather and imitations of leather; animal skins and hides; Luggage, bags, wallets and other carriers; Baby Backpacks; Baby Carriers [Slings or Harnesses]; Baby Carriers worn on the body; Baby Carrying bags; Back frames for carrying children; Backpacks for carrying babies; Beauty Cases; Children's Shoulder Bags; Diaper Bags; Music Bags; Music Cases; Nappy Bags; Pouch Baby Carriers; Reins for guiding children; School backpacks; School Bags; School book bags; School knapsacks; School satchels; Schoolbags; Shoe bags; Toilet bags; Toiletry bags; Trunks and suitcases; Backpacks; Briefcases and Attache cases; Business cases; Carrying cases; Cases for keys; Credit card cases; Flight bags; Garment bags; Hand bags; umbrellas and parasols; walking sticks; Saddlery; Whips; Harnesses; Clothing for animals; Collars of animals; Animal leashes.

Class 25: Clothing; Footwear; Headgear; Children's Clothing; Children's Footwear; Children's Headwear; Gloves.

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

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

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 3

Household utensils include household cleaning articles and the contested cleaning and fragrancing preparations include such preparations for household cleaning purposes. The opponent’s household utensils (not of precious metal or coated therewith) and the contested goods can thus have the same purpose, share the same distribution channels, target the same relevant public and be produced by the same undertakings. Furthermore, they can be complementary. Therefore, they are considered highly similar.

The broad category of the opponent’s household utensils (not of precious metal or coated therewith) also include goods such as laundry balls for use as household utensils which are washing balls that include no or little detergent and the contested laundry preparations include goods such as laundry detergents. As a result, these goods can have the same purpose, share the same distribution channels and target the same relevant public. Furthermore, they are in competition. Therefore, they are similar.

Furthermore, the contested household fragrances and essential oils and aromatic extracts, which include goods such as essential oils for household purposes, as well as the contested perfumery and fragrances are at least similar to a low degree to the opponent’s household utensils (not of precious metal or coated therewith), which include air fragrancing apparatus and perfume burners and can therefore, at least, share the same distribution channels and target the same relevant public. Furthermore, they are complementary.

Moreover, the opponent’s household utensils (not of precious metal or coated therewith) include cleaning articles such as abrasive pads which are similar to a low degree to the contested abrasives since they can share the same distribution channels, target the same relevant public and be produced by the same undertakings.

The opponent’s broad category of household utensils (not of precious metal or coated therewith) also include goods such as soap holders and liquid soap holders and both the contested categories of toiletries and soaps and gels include goods such as (liquid) toilet soap and soapy gels. As a result, these goods can share the same distribution channels, target the same relevant public and are complementary. Therefore, they are similar to a low degree.

However, the remaining contested bath preparations; body cleaning and beauty care preparations; deodorants and antiperspirants; hair preparations and treatments; hair removal and shaving preparations; make-up; oral hygiene preparations; skin, eye and nail care preparations; cosmetics consist of goods that are used to enhance or protect the appearance or odour of the human body or goods that are used in relation to the care of the same which have nothing in common with any of the opponent’s goods in Classes 6 and 21 for household or kitchen use. They are of a different nature and purpose and they do not follow the same method of use. They are not complementary to each other or in competition. Furthermore, even if some of the goods at issue may be found in the same larger supermarkets, they would not be found in the same sections or shelves and they do not target the same relevant public since they satisfy different needs. Furthermore, the goods under comparison are not usually produced by the same undertakings. Therefore, they are dissimilar.

Contested goods in Classes 14, 18 and 25

The contested precious metals; alloys of precious metal; jewellery; precious stones; chronometric instruments; semi precious stones; horological instruments in Class 14, leather and imitations of leather; animal skins and hides; luggage, bags, wallets and other carriers; baby backpacks; baby carriers [slings or harnesses]; baby carriers worn on the body; baby carrying bags; back frames for carrying children; backpacks for carrying babies; beauty cases; children's shoulder bags; diaper bags; music bags; music cases; nappy bags; pouch baby carriers; reins for guiding children; school backpacks; school bags; school book bags; school knapsacks; school satchels; schoolbags; shoe bags; toilet bags; toiletry bags; trunks and suitcases; backpacks; briefcases and attache cases; business cases; carrying cases; cases for keys; credit card cases; flight bags; garment bags; hand bags; umbrellas and parasols; walking sticks; saddlery; whips; harnesses; clothing for animals; collars of animals; animal leashes in Class 18 and clothing; footwear; headgear; children's clothing; children's footwear; children's headwear; gloves in Class 25 are also dissimilar to all the opponent’s goods in Classes 6 and 21 since they have nothing in common for the same reasons as those set out above in relation to the remaining contested goods in Class 3.

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 found to be similar to varying degrees are directed at the public at large.

The degree of attention is considered to be average.

c) The signs

QUATTRO STAGIONI	LE QUATTRO STAGIONI
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 common elements ‘QUATTRO STAGIONI’ are meaningful in certain territories, for example in those countries where Italian is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the Italian-speaking part of the public in the relevant territory.

The part of the public under analysis will understand the earlier mark, ‘QUATTRO STAGIONI’, as meaning ‘four seasons’ and the contested sign, ‘LE QUATTRO STAGIONI’, as meaning ‘the four seasons’. The expression ‘four seasons’ is usually associated with the four seasons of the year, winter, spring, summer and autumn which has no particular meaning in relation to the goods concerned. Therefore, the expression ‘QUATTRO STAGIONI’ in both signs will be perceived as distinctive by the relevant public under analysis and the additional word ‘LE’ (the) in the contested sign is simply a definite article and therefore non-distinctive as such.

Visually, aurally and conceptually, the signs coincide in the expression ‘QUATTRO STAGIONI’ which will be associated by the relevant public under analysis with the concept outlined above and are only differentiated by the additional very short word/sound ‘LE’ (the) in the contested sign which is, furthermore, non-distinctive as such as explained above and will therefore have very little impact on consumers in the overall impression produced by the signs.

Therefore, the signs are visually, aurally and conceptually quasi-identical.

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

d) Distinctiveness of the earlier mark

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

According to the opponent, the earlier mark has been extensively used and enjoys reputation and an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark has no meaning for any of the goods in question from the perspective of the public under analysis in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

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. 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).

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 should also be 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).

In the present case, the goods have been found partially similar to varying degrees and partially dissimilar and the degree of attention of the relevant public is average.

The earlier mark has a normal degree of distinctiveness and the signs have been found visually, aurally and conceptually quasi-identical on account of their coincidence in the expression ‘QUATTRO STAGIONI’, which is the only element of the earlier mark. The signs are only differentiated by the additional definite article in the contested sign which is non-distinctive as such.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Italian-speaking public in the relevant territory. Indeed, even if consumers were to recall that the contested sign contained the additional definite article ‘LE’, it is still highly conceivable that the relevant consumer would perceive the contested mark as a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Therefore, the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration No 3 606 861. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods found to be similar to varying degrees to those of the earlier trade mark, even if some only to a low degree.

However, 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)(b) EUTMR, the opposition based on this article and directed at these goods cannot be successful.

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 extensive use and reputation as claimed by the opponent and in relation to similar goods. 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 mark in relation to dissimilar goods, 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.

The opponent has also based its opposition on the following earlier trade mark:

 European Union trade mark registration No 3 606 852 for the figurative mark .

This earlier mark covers the same goods in Classes 6 and 21 as those covered by the earlier mark already examined. Since these marks cover the same scope of goods, the outcome cannot be different with respect to goods for which the opposition has already been rejected since they are clearly dissimilar for the same reasons as those set out in section a) of this decision. Therefore, no likelihood of confusion exists with respect to those goods and the earlier mark’s alleged enhanced distinctive character cannot change this outcome as also already explained above.

REPUTATION — ARTICLE 8(5) EUTMR

For reasons of procedural economy, the Opposition Division will first examine the opposition in relation to the earlier European Union trade mark registration No 3 606 861 for the word mark ‘QUATTRO STAGIONI’, for which the opponent claimed repute in the EU.

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 above-mentioned 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, the earlier trade mark has a reputation in the European Union.

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

In the present case, the contested trade mark was filed on 17/09/2017. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in the European Union prior to that date. The evidence must also show that the reputation was acquired for the goods for which the opponent has claimed reputation, namely:

Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); glassware; articles in glass including bottles, vases, decanters, food containers of glass.

The opposition is directed against the following remaining goods:

Class 3: Bath preparations; body cleaning and beauty care preparations; deodorants and antiperspirants; hair preparations and treatments; hair removal and shaving preparations; make-up; oral hygiene preparations; skin, eye and nail care preparations; cosmetics.

Class 14: Precious metals; alloys of precious metal; jewellery; precious stones; chronometric instruments; semi precious stones; horological instruments.

Class 18: Leather and imitations of leather; animal skins and hides; luggage, bags, wallets and other carriers; baby backpacks; baby carriers [slings or harnesses]; baby carriers worn on the body; baby carrying bags; back frames for carrying children; backpacks for carrying babies; beauty cases; children's shoulder bags; diaper bags; music bags; music cases; nappy bags; pouch baby carriers; reins for guiding children; school backpacks; school bags; school book bags; school knapsacks; school satchels; schoolbags; shoe bags; toilet bags; toiletry bags; trunks and suitcases; backpacks; briefcases and attache cases; business cases; carrying cases; cases for keys; credit card cases; flight bags; garment bags; hand bags; umbrellas and parasols; walking sticks; saddlery; whips; harnesses; clothing for animals; collars of animals; animal leashes.

Class 25: Clothing; footwear; headgear; children's clothing; children's footwear; children's headwear; gloves.

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

On 19/07/2018 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 of the following documents:

 Enclosure A:

o A list with the names and addresses of the opponent’s headquarters (in Italy), sales offices (in inter alia Italy, Spain, France and Germany) and production plants in Italy and Spain.

 Enclosure B:

o An audio file in Italian mentioning ‘QUATTRO STAGIONI’ which the opponent indicates is a radio commercial together with a PDF document including a table with different specific times listed and entitled ‘Radio Campaign from 4 August to 7 September 2013’. The opponent claims that this document is an official Excel file showing the daily time during which the radio spot related to the ‘QUATTRO STAGIONI’ trade mark was broadcast and indicates that it was commissioned to the agency Media Italia and broadcast on different radio stations (Radio Italia, Radio Kiss Kiss, Radio 101 and Radio Monte Carlo) as indicated in the document submitted. However, as shown in the example images below, the advertising agency’s alleged logo in the document provided is blurred, the fields for the presumed radio station names are blank and the relevant dates are missing since rows of hashtags are shown in their place:

 Enclosure C:

o Copy of an Advertising Services Agreement in Italian signed between the opponent and Ogilvy&Mather S.p.A. and mentioning ‘progetto Quattro Stagioni’ and the dates ‘da Aprile a Ottobre 2014’ and which the opponent indicates is an agreement concerning the studying, conceiving, planning, carrying out and the controlling of the advertising activities related to the ‘QUATTRO STAGIONI’ project that took place from April to October 2014. Copy of Annex A of the agreement entitled ‘QUATTRO STAGIONI project 2014’ which includes the mention of an event as well as a copy of Annex B in Italian with some further details concerning the advertising project.

o Copy of a media space purchase order from the opponent to Ogilvy&Mather S.p.A. mentioning ‘progetto Quattro Stagioni’ and dated 05/06/2014.

o Copy of a price quotation including a breakdown of costs in the total amount of EUR 451.000 from Ogilvy&Mather S.p.A. to the opponent mentioning ‘Operazione Quattro Stagioni’ and dated 03/06/2014.

o Copies of advertising pages dated 2014 included in the magazines Casa Facile, Chi, Donna Moderna, Gente, Hearst Home, La Cucina Italiana, Living, Sale e Pepe, Oggi and Vanity Fair all featuring, inter alia, the following logo:

The products concerned are different ‘QUATTRO STAGIONI’ branded glass jars. Some of the pages also include promotional texts, parts of which have been translated into English, such as ‘As a symbol of the art of preserving as an ingredient for new creations. Be influenced by the evolution of Italy’s most famous vase’ and ‘To serve a cocktail or as a place holder, to cultivate aromatic herbs or as a design lantern: the QUATTRO STAGIONI jar is no longer just the king of preserves, but an icon of modernity with a thousand faces’.

o A table with a detailed description of website and magazine advertising including, inter alia, a listing of the different Italian websites and magazines, the relevant dates (between 09/06/2014-30/09/2014) as well as the type of advertising, such as Intro Full Screen, Masthead, Skin, etc. together with some screenshots from different websites (of unrelated ads) showing the size of different types of advertising banners, such as Full Screen, Masthead and Skin, etc.

o A document dated 09/2014 featuring the ‘QUATTRO STAGIONI’ logo together with ‘Ogilvy’ with information about and a report on the ‘QUATTRO STAGIONI’ advertising campaign in Italian with some parts highlighted and further explained by the opponent in relation to number of clicks and views on the different websites subject to the campaign, including the number of visits on the opponent’s website http://it.quattrostagioni.bormiolirocco.com launched on 19/07/2014 and the origin of the visits (i.e. whether from paid media or from organic searches).

o A copy of a document in Italian which the opponent indicates is a press release about the ‘QUATTRO STAGIONI’ event that took place in Milan on 13/06/2014. There is a partial translation of the text stating ‘From vasocotture to drinking-in-a-jar, the trends that make Italy’s most beloved vase an icon of modernity are proliferating. And the taste for home storage opens up to new ideas, not only in the kitchen’. The opponent has also highlighted the name Enrica Della Martira, who the opponent indicates was a finalist in the last edition of Masterchef Italy and that was chosen as the patroness of the event.

o Copy of a contract in Italian between the opponent and Enrica Della Martira which the opponent indicates is an agreement for the image rights’ licence and professional representation of testimonial by Enrica Della Martira in relation to the ‘QUATTRO STAGIONI’ advertising campaign. However, the document is only signed by the opponent (but not by the other party to the agreement) and is simply dated ‘Bologna,………………2014’.

 Enclosure D:

o Copy of a report in Italian by the company tg|adv in relation to the ‘QUATTRO STAGIONI’ advertising project carried out between June and September 2015. The report includes information about the project (rolled out in four phases: bloggers engagement, video and photo tutorials, web video and a lookbook), images from the same as well as some statistical data including, inter alia, mentions of a reach of approximately 225.000 persons on Facebook and a total reach of around 715.000 persons from the whole editorial endorsement.

o Copy of an internal report on the ‘QUATTRO STAGIONI’ communication campaign 2015 including information on the media strategy and planning, an Expo event held in collaboration with the chef Marco Bianchi and sales point advertising material as well as flyers related to a competition held between July and September 2015.

o Copies of pages in Italian mainly with dates in June 2015 (a few also with dates in July 2015) from different newspapers and magazines, such as parmadaily.it, NOW! Pubblicom, con i Piedi per Terra, LIBERTA’ di PIACENZA, www.ferraraitalia.it, PiacenzaSera.it, www.fitfood.it, etc. with information about the Expo 2015 event mentioning, inter alia, the date and time for the show cooking ‘Mille idee da bere’ by Marco Bianchi organised by the opponent in collaboration with the Foundation Campagna Amica or otherwise making reference to ‘QUATTRO STAGIONI’ and the Expo event, including some pictures from the same. A copy of the Expo Milano 2015 event time table and a description in Italian.

o Copy of a flyer featuring the ‘QUATTRO STAGIONI’ logo and a ‘Fundazione CAMPAGNA AMICA’ logo depicting a ‘QUATTRO STAGIONI’ branded glass jar in the middle.

o Copy of an invoice from Personalmedia to the opponent dated 31/08/2015 and mentioning ‘campagna digital ‘QUATTRO STAGIONI’’ in the description.

o Copy of an internal report on the communication campaign 2015 including, inter alia, examples from social media (Facebook, Twitter, Instagram) of do-it-yourself use of ‘QUATTRO STAGIONI’ glass jars, drink-in-a-jar use and eat-in-a-jar use as well as pictures from the Expo event with Marco Bianchi. The report also includes examples from different websites concerning the same.

 Enclosure E:

o Copy of a report in Italian in relation to the ‘QUATTRO STAGIONI’ communication campaign 2016, including a mention of ‘Operazione Conservati alla Grande’. The report includes mentions of advertising on Facebook, radio spots and in-store material and a time line of the campaign between June and September 2016.

o A document from Mediamond including, inter alia, a table with a listing of radio stations and a time table as well as an indication of a total cost.

o Documents from Radio Suby, Radio Italia, Radio Monte Carlo, Radio 101, Radio Subasio and Radio Deejay to the opponent with the time tables for radio spots to be broadcast between July and September 2016 described respectively as ‘Campagna pubblicitaria: Bormioli Rocco’, ‘A Bormioli Belleza / B Bormioli Forma’, ‘CONSERVATI ALLA GRANDE’ (two), ‘non definito’ (two).

 Enclosure F:

o Copy of an internal report with a summary of the advertising campaigns held in the years 2014-2016 and setting out the objective for the 2017 communications campaign, including the introduction of a new format for baby food.

 Enclosure G:

o An extract from ebay.it showing a page from a magazine with an advertising of ‘QUATTRO STAGIONI’ branded glass jars from the year 1977.

o Several screenshots from different pages of a magazine showing advertisements of ‘QUATTRO STAGIONI’ with the year 1978 added on the documents by the opponent.

o Copy of a promotional flyer dated 1999 featuring a ‘QUATTRO STAGIONI’ branded glass jar and advertising a ‘QUATTRO STAGIONI’ competition called ‘La Stagione dei Desideri’ (The Season of Wishes) held between 01/06/1999 and 30/09/1999.

 Enclosure H:

o Copies of pages in Italian from different magazines and dates, namely Largo Consumo (08/2014), Cucina (undated), Sale&Pepe Promotion (06/2014), Casa Facile (07/2015), Cucina Naturale (09/2015), Cucinare Bene (08/2015), Food Design (06/2015), Insieme in Cucina (09/2015), La Cucina Italiana (08/2015), La Prova del Cuoco (08/2015), Natural Style (08/2015), Oggi (08/2015), Starbene (08/2015), WeVeg (07/2015) most of which show ‘QUATTRO STAGIONI’ branded glass jars but some of which cannot be clearly identified as such.

 Enclosure I:

o A range of pictures showing different ‘QUATTRO STAGIONI’ branded glass jars displayed on shelves and tables which the opponent indicates are from different fairs and exhibitions, namely MACEF and HOMI in Milan (Italy) in 2006, 2008 and 2014 respectively and AMBIENTE, Frankfurt (Germany) in 2012, 2014, 2017 and 2018 respectively. However, none of the relevant years or places of display of the products concerned may be inferred from the pictures provided.

 Enclosure L:

o Copies of relevant pages of the opponent’s product catalogues (some of which are directed at a professional public) from the years 2010-2018 showing a range of different ‘QUATTRO STAGIONI’ branded glassware products mainly consisting of jars but also of other goods such as oil cruets and sugar basins as well as accessories such as aluminium lids and labels. The opponent also mentions a catalogue from 2006 but that cannot be inferred from the documents submitted.

 Enclosure M:

o Tables for the years 2013-2017 with volume and value market shares in Italy (indicated to refer to discount, drug specialists and cash&carry) concerning canning jars and lids indicating, inter alia, for ‘Bormioli Rocco Quattro Stagioni’: (i) glass canning jars – a volume market share ranging from 88.8 in 2017 to 97.9 in 2013 and a value market share ranging from 93.3 in 2017 to 98.7 in 2013 and (ii) lids - a volume market share ranging from 88.4 in 2017 to 93.9 in 2013 and a value market share ranging from 96.8 in 2017 to 98.3 in 2013. The market share figures originate from IRi which the opponent indicates is an independent American market research company that provides clients with consumer, shopper and retail market intelligence and analyses focused on the consumer packaged goods (CPG) industry and that it operates in 58 countries.

 Enclosure N:

o A list of the opponent’s trade mark registrations containing ‘QUATTRO STAGIONI’ in Europe and other parts of the world.

 Enclosure O:

o Three documents signed by the CEO of the opponent with tables concerning the turnover for the period 2007-2017 relating to ‘jars; capsules; accessories’ sold under the ‘QUATTRO STAGIONI’ brand. The figures in the first two documents are broken down per year and indicate a total turnover of around 207 million euros and of around 770 million items sold in the European Union. The turnover figures in the third document are broken down per year and individual EU Member States and show, inter alia, that around 176 million euros of the total turnover for the relevant time period originated from sales in Italy and makes up around 85% of the total turnover in the European Union as a whole during the relevant years, a percentage of which has been relatively consistent each year throughout the whole period.

 Enclosure P:

o Copies of three market research reports in Italian concerning the brand ‘QUATTRO STAGIONI’ from independent sources and different years, namely Research International (2008), TNS (2013) and Nielsen (2016). The opponent indicates that relevant data has been highlighted in the documents but no translations into English have been provided.

As a preliminary remark, the Opposition Division notes that the opponent is not under any obligation to translate the evidence filed with a view to show the reputation of the earlier mark, unless it is specifically requested to do so by the Office (Article 7(4) EUTMDR in conjunction with Article 24 EUTMIR). In this respect and by way of examples, in order to put any data or figures concerning the earlier mark into context of the three market research reports submitted in Italian (enclosure P), a translation (of the relevant parts) into the language of proceedings (English) would be required, in particular since this is not of a self-explanatory character. Likewise, in some of the website pages submitted, certain parts of the texts in Italian have been highlighted by the opponent but in most cases no translations into English have been provided. Some of these highlighted parts are also not of a self-explanatory character and would therefore also require a translation into the language of proceedings if the opponent wishes to rely on the statements made therein. Nevertheless, for the sake of procedural economy and taking into account that the evidence submitted as a whole is still sufficient to prove that the earlier mark enjoys at least some degree of reputation for the reasons set out below, the Opposition Division considers that there is no need to request a translation of the parts of the evidence for which this might otherwise be required as outlined in the examples given above.

Although the evidence submitted is partially flawed, not only insofar as it partially lacks relevant translations into English, but also because some of the evidence submitted does not support the statements made (e.g. the documents in enclosure B for the reasons set out in the description of the evidence, the alleged agreement with Enrica Della Martira (in enclosure C) but which has not been signed by that party or the pictures (enclosure I) allegedly originating from different trade fairs during different years, which can however not be inferred from the same, and which have not been supported by any other evidence), the abovementioned evidence as a whole still indicates that the earlier trade mark has been used for a substantial period of time. This can be inferred from the example magazine advertising and promotional flyer from 1977 and 1999 respectively (enclosure G) together with the rather substantial evidence submitted concerning the opponent’s marketing strategy and efforts in the years 2014-2016 (as shown in particular from the reports from advertising agencies, invoices and numerous different websites and on-line magazines in enclosures C, D, E and H). These marketing efforts and, in particular, the significant market share figures in Italy for the years 2013-2017 (originating from an independent marketing research company as shown in enclosure M) suggest that the trade mark has a consolidated position in this market in relation to the relevant goods mentioned.

However, information deriving directly from the opponent is unlikely to be enough on its own, especially if it only consists of opinions and estimates instead of facts, or if it is of an unofficial character and lacks objective confirmation, as for example when the opponent submits internal memoranda or tables with data and figures of unknown origin. In this respect, the significant turnover figures for the years 2007-2017 submitted by the opponent (enclosure O) do not consist of official accounting documents issued by third party auditors but of documents drawn up by the opponent itself including data and figures of unknown and unverified origin and are therefore of little probative value on their own and these turnover figures cannot be inferred or supported by the other evidence submitted. Furthermore, it should also be noted that even if the evidence shows that the earlier mark was referred to as ‘Italy’s most famous vase (jar)’ in at least one of the magazine pages submitted, it is also clear from the evidence that that advertising in this magazine was part of the opponent’s own paid advertising campaign and this statement concerning the earlier mark’s claimed reputation is therefore also likely to derive from the opponent itself. Under these circumstances, the Opposition Division finds that even if the evidence submitted does not support a finding of a high degree of reputation, taken as a whole, it still indicates that the earlier trade mark enjoys a certain degree of recognition among the relevant public in Italy. Taking into account the significance of Italy in the European Union owing to its geographical size, its population and its economic weight, the reputation in this market suffices to establish reputation in the European Union. Whether the degree of recognition is sufficient for Article 8(5) EUTMR to be applicable depends on other factors relevant under Article 8(5) EUTMR such as, for example, the degree of similarity between the signs, the inherent characteristics of the earlier trade mark, the type of goods in question, the relevant consumers, etc.

However, the evidence does not succeed in establishing that the trade mark has a reputation for all the goods on which the opposition is based and for which reputation has been claimed. The evidence almost exclusively relates to food containers of glass and aluminium (metal) lids for the same (for which reputation has not been claimed), whereas there is no or little reference to the remaining goods. This is clear, for example, from the market share report, advertising campaigns and the advertisements of the earlier mark on the different websites and on-line magazines, where only the former are mentioned.

For the sake of clarity, it should also be mentioned that although the evidence submitted shows that the earlier mark is most prominently used both in advertising and on the products themselves in the following figurative form , it is also clear from the evidence that the word mark ‘QUATTRO STAGIONI’ is also used in relation to the goods concerned, in for example the body of advertising texts or other texts referring to the ‘QUATTRO STAGIONI’ brand. Furthermore, the Opposition Division does not consider that the depiction of the verbal element ‘QUATTRO STAGIONI’ over two lines in the stylisation shown in the figurative mark above is of such a nature as to alter the distinctive character of the verbal element ‘QUATTRO STAGIONI’ as such. As a result, reputation achieved through the use of ‘QUATTRO STAGIONI’ in this figurative form may therefore also be extrapolated to the word mark consisting of the same verbal elements.

Consequently, on the basis of the above, the Opposition Division concludes that the earlier trade mark for the word mark ‘QUATTRO STAGIONI’ has some degree of reputation in the European Union for food containers of glass.

b) The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR insofar as the Italian-speaking public in the relevant territory is concerned. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

c) The ‘link’ between the signs

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.

As seen above, the earlier mark enjoys some degree of reputation in view of its long-standing use and significant market share in Italy and the signs are quasi-identical for the Italian-speaking public.

Another factor to consider when assessing whether there is a ‘link’ between the signs are the relevant goods. The goods for which the earlier mark has a reputation are food containers of glass. Although the main purpose of the opponent’s reputed goods are to preserve food, the evidence also shows that in more recent years they are also sold and marketed as drink-in-a-jar, eat-in-a-jar and do-it-yourself-jars for home decoration purposes. The remaining contested goods in Class 3 are bath preparations; body cleaning and beauty care preparations; deodorants and antiperspirants; hair preparations and treatments; hair removal and shaving preparations; make-up; oral hygiene preparations; skin, eye and nail care preparations; cosmetics. All these goods can also be sold and marketed in glass jars, even those goods which may not typically be sold in this type of containers, such as oral hygiene preparations and deodorants. Therefore, taking into account and weighing up all the relevant factors in relation to these goods, the Opposition Division concludes that, when encountering the contested sign in relation to the different remaining contested goods in Class 3, which may also be marketed in the same type of containers as those for which the earlier mark has some degree of reputation and bearing in mind that the signs are quasi-identical for the Italian-speaking public, the relevant consumers will be likely to associate the contested sign with the earlier mark, that is to say, establish a mental ‘link’ between the signs.

However, as regards the remaining contested goods in Classes 14, 18 and 25, while the relevant section of the public for the goods covered by the conflicting marks is the same or overlaps to some extent, the nature of those goods and the way they are marketed and sold are so different that the later mark is unlikely to bring the earlier mark to the mind of the relevant public. None of the contested goods in these classes are sold or marketed in glass jars or similar containers and the expression ‘QUATTRO STAGIONI’ is furthermore not unique to the opponent. For example, it is a well-known fact that ‘Quattro Stagioni’ is a classic variety of pizza in Italian cuisine that is prepared in four sections with diverse ingredients, with each section representing one season of the year. Furthermore, it is also a well-known fact that ‘Le Quattro Stagioni’ is a famous group of four violin concerti by the Italian composer Antonio Vivaldi each of which gives musical expression to a season of the year. In addition, it should also be taken into account that, in particular, in relation to the contested goods in Class 25, ‘le quattro stagioni’ (the four seasons) has a direct connection to its natural and literal meaning for the relevant public in Italy since such goods are usually marketed and sold for the different seasons of the year. Therefore, even if the signs in dispute are quasi-identical for the Italian-speaking public, the Opposition Division finds it unlikely that the relevant Italian-speaking public when encountering the contested sign in relation to goods in Classes 14, 18 and 25, which would not be a natural extension of the opponent’s reputed goods in Class 21 and which bear no resemblance in the way they are marketed and sold, would make a mental connection with the earlier mark as opposed to for example the well-known pizza, the Vivaldi concerti or simply to its natural and literal meaning merely associated with the four seasons of the year.

Therefore, taking into account and weighing up all the relevant factors of the present case in relation to the remaining contested goods in Classes 14, 18 and 25, the Opposition Division concludes that it is unlikely that the relevant public in Italy will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them.

As regards the remaining public in the relevant territory, i.e. the public in all the other Member States of the EU with the exception of Italy, it must be noted that the evidence of reputation submitted by the opponent is almost exclusively related to the Italian market. Although the opponent submitted some pictures of goods bearing the earlier mark which it claimed were taken at a trade fair in Germany during different years, this cannot be inferred from the pictures themselves and is not supported by any other evidence as already outlined above. Furthermore, the only other evidence related to any other market apart from Italy is the document with the alleged turnover figures in the EU, also broken down per Member State. However, as also explained above, this document originates from the opponent itself and is therefore of little probative value on its own and the turnover figures listed for all the remaining EU Member States in question are not supported by any other evidence. Moreover, the alleged turnover figures, which show that around 85% relate to sales in Italy and only around 15% thereof to sales in other markets split between most of the Member States in the EU, cannot themselves, and without any other evidence, establish that the earlier mark is known by a substantial, or even by a commercially significant, part of the public in any other Member State of the EU that is not Italy. Therefore, even if the earlier mark has been found to have a reputation in the Union, it is only on the basis of the certain degree of reputation it has been shown to have to the relevant public in Italy, which was considered to constitute a substantial part of the relevant territory for the reasons set out above.

In this respect, the Opposition Division notes that in the context of a preliminary ruling concerning the application of a national mark in an EU Member State opposed by an earlier EUTM with reputation, the CJEU has held that, if the earlier EUTM has already acquired a reputation in a substantial part of the territory of the European Union, but not with the relevant public in the Member State in which registration of the later national mark concerned by the opposition has been applied for, the proprietor of the EUTM may benefit from the protection introduced by Article 4(3) of Directive 2008/95 (corresponding to Article 8(5) EUTMR) where it is shown that a commercially significant part of that public is familiar with that mark, makes a connection between it and the later national mark, and that there is, taking account of all the relevant factors in the case, either actual and present injury to its mark, for the purposes of that provision or, failing that, a serious risk that such injury may occur in the future (see to this effect 03/09/2015, C-125/4, Iron & Smith (impulse v be impulsive), EU:C:2015:539, § 34).

These considerations may be applied by analogy to the assessment of the grounds under Article 8(5) in opposition proceedings against an EUTM application. In this respect, for the reasons set out above, the opponent has not shown that a commercially significant part of the public in any Member State of the European Union other than that in Italy is familiar with the earlier mark and it is therefore not conceivable that the remaining part of the public in the relevant territory would make a connection between the opponent’s earlier mark and the contested sign, that is to say establish a ‘link’ between them. The same goes for the other earlier right invoked by the opponent and for which reputation was also claimed, namely European Union trade mark registration No 3 606 852 ‘QUATTRO STAGIONI’ (fig.) since the evidence submitted in support of this claim is the same as that filed in relation to the earlier mark already assessed. Therefore, the outcome cannot be different with respect to the other earlier right invoked by the opponent – there is no link between the signs - and the opposition is thus not well founded under Article 8(5) EUTMR and must be rejected insofar as it is directed against the remaining contested goods in Classes 14, 18 and 25.

Nevertheless, for the reasons set out above, when encountering the contested sign in relation to the remaining contested goods in Class 3, the relevant consumers (in Italy) will be likely to associate it with the earlier mark and establish a mental ‘link’ between them. However, although a ‘link’ between the signs is a necessary condition for further assessing whether detriment or unfair advantage are likely, the existence of such a link is not sufficient, in itself, for a finding that there may be one of the forms of damage referred to in Article 8(5) EUTMR (26/09/2012, T 301/09, Citigate, EU:T:2012:473, § 96).

d) Risk of injury

Use of the contested mark will fall under Article 8(5) EUTMR when any of the following situations arise:

 it takes unfair advantage of the distinctive character or the repute of the earlier mark;

 it is detrimental to the repute of the earlier mark;

 it is detrimental to the distinctive character of the earlier mark.

Although detriment or unfair advantage may be only potential in opposition proceedings, a mere possibility is not sufficient for Article 8(5) EUTMR to be applicable. While the proprietor of the earlier mark is not required to demonstrate actual and present harm to its mark, it must ‘adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment’ (06/07/2012, T‑60/10, Royal Shakespeare, EU:T:2012:348, § 53).

It follows that the opponent must establish that detriment or unfair advantage is probable, in the sense that it is foreseeable in the ordinary course of events. For that purpose, the opponent should file evidence, or at least put forward a coherent line of argument demonstrating what the detriment or unfair advantage would consist of and how it would occur, that could lead to the prima facie conclusion that such an event is indeed likely in the ordinary course of events.

Unfair advantage (free-riding)

Unfair advantage in the context of Article 8(5) EUTMR covers cases where there is clear exploitation and ‘free‑riding on the coat‑tails’ of a famous mark or an attempt to trade upon its reputation. In other words, there is a risk that the image of the mark with a reputation or the characteristics which it projects are transferred to the goods and services covered by the contested trade mark, with the result that the marketing of those goods and services is made easier by their association with the earlier mark with a reputation (06/07/2012, T‑60/10, Royal Shakespeare, EU:T:2012:348, § 48; 22/03/2007, T‑215/03, Vips, EU:T:2007:93, § 40).

The opponent bases its claim on the following:

 It is highly probable that the use of the contested trade mark would produce an undeserved appropriation of the attractive qualities and advertising values of the opponent’s ‘QUATTRO STAGIONI’ trade marks. This would create the situation of commercial parasitism, where the applicant would freely exploit the opponent’s investments, made for promoting and strengthening the goodwill of his own trade marks – of millions of euros – since 1825, because this would encourage sales of the applicant’s products not in a proportional way, if compared to what he would have fairly obtained basing himself only on his own force.

 It is also probable that the use of the contested trade mark would result in an exploitation of the image and prestige of the ‘QUATTRO STAGIONI’ trade marks. This kind of unfair appropriation typically concerns the quality of the earlier trade marks. Indeed, ‘QUATTRO STAGIONI’ is a mark of high quality in the field of household and glass sector, and it is one of the most famous and appreciated brands worldwide. So, it is synonym of guarantee for excellence, reliability and quality, that would be exploited by the use of so a similar mark and identical / similar products.

According to the Court of Justice of the European Union

… as regards injury consisting of unfair advantage taken of the distinctive character or the repute of the earlier mark, in so far as what is prohibited is the drawing of benefit from that mark by the proprietor of the later mark, the existence of such injury must be assessed by reference to average consumers of the goods or services for which the later mark is registered, who are reasonably well informed and reasonably observant and circumspect.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 36.)

As outlined above, the relevant goods in Class 3 may be sold and marketed in the same or similar containers as the glass jars for which the earlier mark enjoys reputation in view of it’s long-standing use, in particular as a container for home-made food preserves but also more recently as an item to be used in more innovative and modernised ways as a drink-in-a-jar, eat-in-a-jar and do-it-yourself-jar for home decoration purposes. Furthermore, as shown by the evidence submitted the goods sold under the earlier mark have kept the same vintage design throughout the years and the earlier mark has continuously and prominently been used in an old-fashion type stylisation thus projecting an image and aura of representing good old home-made high quality products.

Therefore, the reputation of the earlier mark, in that it conveys a message of natural, home-made high quality products, that may be transferred to the image of the contested sign in the minds of the relevant Italian consumers, could positively influence, without any marketing efforts or investment by the applicant on its own, the choice of those consumers as regards the contested goods concerned offered under the contested sign vis-à-vis those offered by other providers.

On the basis of the above and the arguments put forward by the opponent, the Opposition Division concludes that the contested sign is likely to take unfair advantage of the distinctive character or the repute of the earlier trade mark in relation to the remaining contested goods in Class 3.

Other types of injury

The opponent also argues that use of the contested trade mark would be detrimental to the repute of the earlier trade mark.

As seen above, the existence of a risk of injury is an essential condition for Article 8(5) EUTMR to apply. The risk of injury may be of three different types. For an opposition to be well founded in this respect it is sufficient if only one of these types is found to exist. In the present case, as seen above, the Opposition Division has already concluded that the contested trade mark would take unfair advantage of the distinctive character or repute of the earlier trade mark in relation to the remaining contested goods in Class 3. It follows that there is no need to examine whether other types also apply.

e) Conclusion

Considering all the above, the opposition is well founded under Article 8(5) EUTMR insofar as it is directed against the following remaining goods:

Class 3: Bath preparations; body cleaning and beauty care preparations; deodorants and antiperspirants; hair preparations and treatments; hair removal and shaving preparations; make-up; oral hygiene preparations; skin, eye and nail care preparations; cosmetics.

However, the opposition is not successful insofar as the other remaining goods are concerned, namely all those in Classes 14, 18 and 25.

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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Begoña URIARTE VALIENTE

Sam GYLLING

Sandra IBAÑEZ

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.