OPPOSITION No B 3 013 532

Helixor Heilmittel GmbH, Fischermühle 1, 72348 Rosenfeld, Germany (opponent), represented by Rüger & Abel, Webergasse 3, 73728 Esslingen am Neckar, Germany (professional representative)

a g a i n s t

Gustopharma Consumer Health, S.L., Velázquez 10 – 2º izqda., 28001 Madrid, Spain (applicant), represented by Herrero & Asociados, Cedaceros 1, 28014 Madrid, Spain (professional representative).

On 11/07/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 013 532 is partially upheld, namely for the following contested goods (namely, for all the goods in Class 5):

Class 5: Health food supplements made principally of vitamins; nutritional supplement (listed three times); food supplements; dietary supplements consisting of vitamins; none of the foregoing for the treatment of leukaemia, cancer and oncological diseases.

2. European Union trade mark application No 17 234 824 is rejected for all the above goods. It may proceed for the remaining goods (namely: for all the goods in Class 3).

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 234 824 for the word mark ‘HELIXORIGINAL’. The opposition is based on, inter alia, international trade mark registration No 431 407 designating the Benelux, France and Italy, for the word mark ‘HELIXOR’. The opponent invoked Article 8(1) (b) EUTMR.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of all the trade marks (for ‘HELIXOR’, ‘Helixor’ and ) on which the opposition is based. The date of filing of the contested application is 21/09/2017. The opponent was therefore required to prove, inter alia that the trade marks on which the opposition is based were put to genuine use in the European Union (or respective countries of the EU, as regards the national German mark and the international registration designating various EU Member States), from 21/09/2012 to 20/09/2017 inclusive.

The request was submitted in due time and is admissible given that the earlier trade marks were registered more than five years prior to the relevant date mentioned above.

Furthermore, the evidence must show use of the trade marks for the goods on which the opposition is based, namely, as regards international trade mark registration No 431 407 designating the Benelux, France and Italy, the following:

Class 5: Pharmaceutical preparations, in particular a cancer remedy.

As a preliminary matter, an interpretation of the wording of this list of goods is required to determine the scope of protection of these goods. The term ‘in particular’, 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 (see 09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107). Therefore, the above cited earlier mark covers the broad category, including all kinds, of pharmaceutical preparations.

According to Article 10(3) EUTMDR, the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 05/09/2018, in accordance with Article 10(2) EUTMDR, the Office gave the opponent until 10/11/2018, subsequently extended until 10/12/2018, to submit evidence of use of the earlier trade marks. On 14/11/2018, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following:

 Screenshots from the opponent’s website, <www.helixor.de>, showing the network of distribution partners of Opponent in the following countries of the European Union: Austria, Denmark, Finland, Latvia, Lithuania, Luxembourg and the Netherlands. (Annex 1)

 Pictures (Annex 2) of product packaging, bearing the earlier marks as depicted hereunder:

.

 Around 200 pages of invoices related to sales of HELIXOR goods, issued by the opponent and dated between 2008 and 2018, addressed to clients in Austria, Belgium, Denmark, Finland, Germany, Latvia, Lithuania, Luxembourg, the Netherlands and Sweden (Annex 3). The invoices issued to Belgium and Luxembourg are dated in the relevant period or in any event close in time to this period.

 Price lists for sales of HELIXOR products (Annex 4) in Denmark, Finland, Latvia, Lithuania, Luxembourg, the Netherlands, Austria and Sweden, dated between 2011 and 2016 and showing the opponent’s details as well as the earlier marks as depicted below:

 Invoices issued by online distributor of the opponent’s goods (i.e. an online pharmacy: <www.mistletoe-pharmacy.com>) dated between the years 2011 and 2016, showing online sales of HELIXOR products to customers in Belgium, Bulgaria, Croatia, Finland, France, Greece, Great Britain, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovenia and Spain. (Annex 5) The various invoices issued to customers in France, the French-speaking part of Belgium and in Luxembourg, in Italy are all dated throughout the relevant period.

 Product information sheets and marketing materials showing the marks as depicted above, in various languages, dated between 2011 – 2016, from which can be deducted that the opponent is owned by a non-profit foundation and that the HELIXOR products are natural preparations particularly adapted for use in the oncological field, with the purpose of stimulation of the immune system, improving life quality and tolerability of conventional oncological therapies. (Annexes 6-7)

 Materials showing the presence of the HELIXOR marks as depicted above at specialized trade fairs in the field of oncological treatments and at congresses seminars and workshops in Germany and Switzerland, in the period 2011 – 2016 (Annex 8).

The applicant argues that the opponent did not submit translations of some of the evidence of use and that therefore this evidence should not be taken into consideration. However, the opponent is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (Article 10(6) EUTMDR). Taking into account the nature of the documents that have not been translated and are considered relevant for the present proceedings, namely, invoices and product information sheets in various languages, and their self-explanatory character (alone or, as regards the product information sheets, in conjunction with the marketing materials in English), the Opposition Division considers that there is no need to request a translation.

The applicant also contests some of the evidence of use filed by the opponent, in particular the invoices showing online sales of HELIXOR products, on the grounds that it does not originate from the opponent itself but from another company. According to Article 18(2) EUTMR, use of the EUTM with the consent of the proprietor is deemed to constitute use by the proprietor. Although this provision covers EUTMs, it can be applied by analogy to earlier marks registered in Member States. The fact that the opponent submitted evidence of use of its marks by a third party implicitly shows that it consented to this use (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225). Consequently, since it can be presumed that the evidence filed by the opponent is an implicit indication that use has been made with its consent, the applicant’s claim is unfounded. To this extent, and in accordance with Article 18(2) EUTMR, the Opposition Division considers that the use made by those other companies was made with the opponent’s consent and thus is equivalent to use made by the opponent.

Furthermore, the applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods for which the earlier marks are registered. Nevertheless, the applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

The invoices show that the place of use is inter alia, the (French-speaking part of the) Benelux, France and Italy. This can be inferred from the specific addresses mentioned on the invoices. Therefore, the evidence relates to the relevant territory.

Most of the evidence is dated within the relevant period. Evidence referring to use made outside the relevant timeframe is disregarded unless it contains conclusive indirect proof that the mark must have been put to genuine use during the relevant period of time as well. Events subsequent to the relevant time period may make it possible to confirm or better assess the extent to which the earlier mark was used during the relevant time period and the real intentions of the EUTM proprietor at that time (27/01/2004, C‑259/02, Laboratoire de la mer, EU:C:2004:50). In the present case, the evidence referring to use outside the relevant period confirms in any event use of the opponent’s mark within the relevant period, because it is close in time to the relevant period.

The evidence shows that the mark has been used in accordance with its function and as registered for part of the goods for which it is registered. In the context of Article 10(3) EUTMDR (former Rule 22(3) EUTMIR, in force before 01/10/2017), the expression ‘nature of use’ includes evidence of use of the sign in accordance with its function, of use of the mark as registered, or of a variation thereof according to Article 18(1), second subparagraph, point (a) EUTMR, and of its use for the goods and services for which it is registered. According to Article 18(1), second subparagraph, point (a), EUTMR, the following will also constitute use within the meaning of paragraph 1: use of the European Union trade mark in a form differing in elements that do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor. When examining the use of an earlier registration for the purposes of Article 47(2) and (3) EUTMR, Article 18 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned. In the present case, the use of the earlier marks, as seen above, in colour and/or in a decorative (slightly stylised) typeface or in combination with a meaningless figurative element which will in any event not distract the consumers’ attention from the verbal element ‘HELIXOR’, does clearly not alter the distinctive character of the marks in the form in which they were registered.

Finally, as regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods and the characteristics of the market concerned, the territorial extent of use, and its commercial volume, duration and frequency. The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145; 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68). Use of the mark need not be quantitatively significant for it to be deemed genuine.

Although the evidence submitted by the opponent is not overly exhaustive, it shows use of the earlier marks in several Member States, such as Belgium, France, Italy Luxembourg and the Netherlands. The documents filed in conjunction, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use, in inter alia these territories. Therefore, taking into account the evidence in its entirety, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of use of the earlier marks in these territories and that the evidence filed reaches the minimum level necessary to establish genuine use of the earlier trade marks during the relevant period in, at least, the Benelux, France and Italy.

However, the evidence filed by the opponent does not show genuine use of the trade marks for all the goods covered by those earlier trade marks, which either cover the broad category of pharmaceutical preparations and medicines, or (as regards the German earlier mark) pharmaceutical preparations, namely for the treatment of leukemia and cancer. As detailed above, the term ‘in particular’, used in the opponent’s list of goods, indicates that the specific goods are only examples of items included in the category; the term ‘namely’, on the other hand, used in the list of goods of the opponent’s earlier German mark, to show the relationship of individual goods to a broader category, is exclusive and restricts the scope of protection only to the goods specifically listed.

It follows from the evidence that the marks are used solely in relation to natural preparations particularly adapted for use in the oncological field, with the purpose of stimulation of the immune system, improving life quality and tolerability of conventional oncological therapies

According to Article 47(2) EUTMR, if the earlier trade mark has been used in relation to only some of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of those goods or services.

According to case-law, when applying the abovementioned provision, the following should be considered:

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub‑categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub‑category or sub‑categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub‑categories.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288, § 45‑46.)

In the present case, the evidence proves use only for goods that can be considered to form an objective subcategory of pharmaceutical preparations, namely natural preparations for oncological treatment. Therefore, the Opposition Division considers that the evidence shows genuine use of the trade marks only for natural preparations for oncological treatment, in Class 5.

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 regards international trade mark registration No 431 407 designating the Benelux, France and Italy for the word mark ‘HELIXOR’ for which proof of use was duly proven (see above, under the section PROOF OF USE) and for which the coinciding string of letters of the signs under comparison have a meaning and are normally distinctive (see below, under section c) of this decision), which is the best light in which the opponent’s case can be considered.

a) The goods

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

Class 5: Natural preparations for oncological treatment.

After a limitation filed by the applicant on 15/01/2019, the contested goods are the following:

Class 3: Cosmetics.

Class 5: Health food supplements made principally of vitamins; food supplements; dietary supplements consisting of vitamins; nutritional supplements (listed three times); none of the foregoing for the treatment of leukaemia, cancer and oncological diseases.

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

The contested cosmetics are dissimilar to the opponent’s earlier goods. Contrary to the opponent’s argument that certain cosmetics are meant for use during oncological treatment, however, these goods do not usually coincide in producers, distribution channels and method of use. They do neither coincide in purpose. Furthermore, they are not in competition or complementary.

Contested goods in Class 5

The contested health food supplements made principally of vitamins; nutritional supplements; food supplements; dietary supplements consisting of vitamins none of the foregoing for the treatment of leukaemia, cancer and oncological diseases are all preparations and substances prepared for special dietary requirements, with the purpose of treating or preventing disease. Bearing this in mind, their purpose is similar to that of the opponent’s natural preparations for oncological treatment which are substances used to treat or prevent a particular disease insofar as they are used to improve a patient’s medical condition. The relevant public may coincide and the goods can have the same distribution channels. Therefore, these goods are considered similar.

b) Relevant public — degree of attention

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

In the present case, the goods found to be similar are directed at the public at large and at professionals. It is apparent from the case law that, insofar as products related to consumer’s health are concerned, the relevant public’s degree of attention is relatively high (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36). In particular, healthcare professionals have a high degree of attention but also the public at large shows a higher than average degree of attention, as these goods affect their state of health. Therefore, the relevant public’s degree of attention will be higher than average to high for the goods at issue.

Given that the general public is more prone to confusion, the examination will proceed on this basis.

c) The signs

HELIXOR	HELIXORIGINAL
Earlier trade mark	Contested sign

The relevant territory is the Benelux, France and Italy, respectively.

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).

Both signs are word marks. The elements ‘HELIXOR’ and ‘HELIX’ will be associated by the French- and Italian speaking parts of the relevant public in these territories (i.e. the French-speaking part of Belgium as well as in France and Luxembourg) with the English term ‘helix’, that is a spiral shape or form, on account of the highly similar equivalent French and Italian terms, (la) ‘hélice’ and ‘elica’, respectively. Indeed, although the signs at issue are composed of one verbal element, the relevant consumers, when perceiving a verbal sign, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). Furthermore, the string of letters ‘ORIGINAL’ in the contested sign will be perceived by the French- and Italian speaking part of this public as the English adjective meaning first or earliest, on account of its identical/highly similar French (‘original’) and Italian (‘original/-e’) equivalent term. This element in the contested sign is thus purely laudatory of the goods at issue. Consequently, the above identified parts of the relevant public will associate both signs with the arbitrary (and thus normally distinctive) concept of ‘helix’, while the suffix of the earlier mark ‘-OR’ is meaningless and the element ‘ORIGINAL’ of the contested sign descriptive.

Consumers also generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. Therefore, in the present case, the distinctive first verbal element, ‘HELIX’ is considered to have a much stronger impact on the relevant public than the remaining elements, the suffix ‘-OR’ / the non-distinctive element ‘ORIGINAL’ placed at the end of the signs.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the signs will be associated with an identical meaning on account of the coinciding string of letters that form the beginning of both signs, the signs are conceptually highly similar. Although - as seen above - the term ‘ORIGINAL’ in the contested sign will evoke a concept, it is not sufficient to establish any conceptual dissimilarity, as this element is non-distinctive in relation to the goods for the public under analysis in the relevant territories and thus cannot indicate any commercial origin. The attention of the relevant public under analysis will undoubtedly be attracted by the signs’ coinciding and normally distinctive element and beginning ‘HELIX-’.

Visually and aurally, irrespective of the different pronunciation rules in the different parts of the relevant territories taken into account, the pronunciation of the signs the signs coincide in the (sound of the) distinctive verbal element ‘HELIX(-OR)’ which forms the entire earlier mark and the beginning of the contested sign. They differ in the additional final letters of the contested sign, altering thus the length and rhythm. Considering all the foregoing, trom a visual and aural point of view, the signs are considered highly similar.

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

d) Distinctiveness of the earlier mark

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

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

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

e) Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods. Therefore, a lesser degree of similarity between goods 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 covered are from the same or economically linked undertakings.

In the present case, the goods are partly similar and party dissimilar. The distinctiveness of the earlier mark is normal. The signs coincide in the element ‘HELIX(-OR)’, which constitutes the beginning of both signs and the sole distinctive part of the contested sign. The differences between the marks are confined to the final letters ‘(-OR)IGINAL’ forming the second, non-distinctive element of the contested sign; in the Opposition Division’s view, this difference is clearly not sufficient to exclude the likelihood of confusion, even where the attention of the relevant public will be high. Indeed, even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Indeed, it is highly conceivable that the relevant average consumer taken into account will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates.

Considering all the above, the Opposition Division considers that the degree of similarity between the marks, as set out, above leads to a likelihood of confusion on the part of the French- and Italian speaking general public in the Benelux, France and Italy. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public is sufficient to reject the contested application. Therefore the opposition is partly well-founded on the basis of the opponent’s international trade mark registration No 431 407 designating the Benelux, France and Italy.

It follows from the above that the contested sign must be rejected for all the goods found to be similar to those of the opponent’s earlier mark compared above.

The rest of the contested goods, namely cosmetics, in Class 3, 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 on the basis of the opponent’s earlier international trade mark registration No 431 407 designating the Benelux, Italy and France.

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

 European Union trade mark registration No 9 985 557 for the word mark

‘HELIXOR’;

 European Union trade mark registration No 10 604 701 for the figurative mark

;

 international trade mark registration No 431 407 designating the Czech Republic, Hungary, Ireland, Portugal, Latvia, Lithuania, Romania, Slovakia and Spain, for the word mark HELIXOR;

 German trade mark registration No 927 621, for the word mark ‘HELIXOR’.

These earlier marks cover the same scope of goods, as detailed above under ‘PROOF OF USE’. Therefore, the outcome cannot be different with respect to the goods cosmetics for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods in relation to these remaining earlier marks either.

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

Francesca CANGERI SERRANO

Edith Elisabeth VAN DEN EEDE

Andrea VALISA

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.