OPPOSITION No B 3 043 711

Axitec Markenrechts GmbH, Otto-Lilienthal-Straße 5, 71034 Böblingen, Germany (opponent), represented by Rödl Rechtsanwaltsgesellschaft Steuerberatungsgesellschaft mbH, Äussere Sulzbacher Str. 100, 90491 Nürnberg, Germany (professional representative)

a g a i n s t

Ningbo Kotler Marketing Management Co.,Ltd, Rm 864, Bldg 2, Yonggangxiandaiminglou, No.188, Jinhua Rd, Gaoxin Dist, null, Ningbo, Zhejiang, China (applicant), represented by Arcade & Asociados, C/ Isabel Colbrand, 6 - 5ª planta, 28050 Madrid, Spain (professional representative).

On 28/06/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 043 711 is partially upheld, namely for the following contested goods and services:

Class 9: Battery chargers; accumulators, electric; electric batteries; flexible circuit boards; solar batteries; photovoltaic modules; solar panels for the production of electricity; battery charging devices for motor vehicles; rechargeable batteries; sockets, plugs and other contacts [electric connections]; electric sockets; light switches; converters, electric; USB cables for cellphones; electronic scales.

Class 11: Electric kettles; refrigerated containers [electric]; electric fans for personal use; air purifying apparatus and machines; ionization apparatus for the treatment of air or water; heat regenerators; solar collectors for heating; water purifying apparatus; pocket warmers; bread toasters; roasting apparatus; coffee machines, electric; ice-cream making machines; refrigerators; cooling apparatus; heaters; foot warmers.

Class 35: Advertising; arranging and placing of advertisements; business management consulting; commercial administration of the licensing of the goods and services of others; providing business information via a website; commercial intermediation services; import-export agency services; sales promotion for others; procurement services for others [purchasing goods and services for other businesses]; marketing; consultancy and advisory services in the field of business strategy; market studies; provision of an on-line marketplace for buyers and sellers of goods and services; sponsorship search; search engine optimisation for sales promotion; web site traffic optimisation.

2. European Union trade mark application No 17 386 616 is rejected for all the above goods and services. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 17 386 616 for the figurative mark . The opposition is based on international trade mark registration No 1 080 093 designating the European Union for the figurative mark and international trade mark registration No 1 080 369 designating the European Union for the word mark ‘AXITEC’. The opponent invoked Article 8(1)(b) EUTMR.

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

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

a) The goods and services

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

International trade mark registration No 1 080 093 designating the European Union:

Class 4: Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and lighting fuels; electrical energy; candles and wicks for lighting.

Class  6: Common metals and their alloys; building materials of metal; aluminium profiles, rotary metal structures for solar panels, solar modules and roof constructions, fixing material of metal, materials of metal for scaffolds, metal racks, metal poles, stakes and masts of metal, metal building profiles and frames; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal (not for electric purpose); ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores; all the aforesaid goods exclusively for mounting photovoltaic systems and their components.

Class  9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; photovoltaic systems, namely consisting of solar modules for power generation, inverters, electronic apparatus and instruments for controlling, regulating, accumulating and monitoring; solar panel systems, namely consisting of solar modules, solar collectors and inverters for power generation; electronic apparatus and instruments for controlling, regulating, accumulating and monitoring of power generation; magnetic data carriers, data processing apparatus and computers (not for capturing the measuring results of gas measurements); all the aforesaid goods exclusively for mounting photovoltaic systems and their components.

Class  11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating and water conduit purposes; solar collectors and solar modules for the heat generation and systems consisting thereof, solar roof installations and open-air installations.

Class 19: Building materials (non-metallic); non-metallic pipes for building; building profile ledges (non-metallic); asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal; non-metallic roofs incorporating solar cells.

Class 35: Advertising; business management; business administration; office functions; professional business and organizational planning of systems and plants for regenerative energy generation; professional business and organization consultancy for systems and plants for regenerative energy generation; business project management, in particular for systems and plants in the field of renewable energy; arranging of contracts for others for the buying and selling of power supplies.

Class 37: Construction; repair, namely, repair services of individual components in the field of photovoltaic and solar thermal energy; installation services; construction, cleaning, repair and maintenance of systems and plants in the field of renewable energy; scaffolding; roofing services.

Class 39: Transport; packaging and storage of goods; arranging of tours (travel); transmission and transport of electricity, thermal heat, gas or water; delivery of electricity, thermal heat, gas or water for supply to customers; delivery and distribution of energy.

Class 40: Treatment of materials; generation of energy.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; technical analysis and preparation of technical certificates for assessment of projects and project partners; technical planning, technical projects and technical coordination of systems and plants in the field of renewable energy; quality testing of products for certification purposes, design, planning and engineering of as well as development services for third parties in the field of renewable energy; engineering.

International trade mark registration No 1 080 369 designating the European Union:

Class 4: Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and lighting fuels; electrical energy; candles and wicks for lighting.

Class 6: Common metals and their alloys; building materials of metal; aluminium profiles, rotary metal structures for solar panels, solar modules and roof constructions, fixing material of metal, materials of metal for scaffolds, metal racks, metal poles, stakes and masts of metal, metal building profiles and frames; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal (not for electric purpose); ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores; all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts.

Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; photovoltaic systems, namely consisting of solar modules for power generation, inverters, electronic apparatus and instruments for controlling, regulating, accumulating and monitoring; solar panel systems, namely consisting of solar modules, solar collectors and inverters for power generation; electronic apparatus and instruments for controlling, regulating, accumulating and monitoring of power generation; magnetic data carriers, data processing apparatus and computers (not for capturing the measuring results of gas measurement); all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts.

Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating and water conduit purposes, all aforementioned goods related to solar technology; solar collectors and solar modules for the heat generation and systems consisting thereof, solar roof installations and open-air installations.

Class 19: Building materials (non-metallic); non-metallic pipes for building; building profile ledges (non-metallic); asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal; non-metallic roofs incorporating solar cells.

Class 35: Advertising; business management; business administration; office functions; professional business and organizational planning of systems and plants for regenerative energy generation; professional business and organization consultancy for systems and plants for regenerative energy generation; business project management, in particular for systems and plants in the field of renewable energy; arranging of contracts for others for the buying and selling of power supplies.

Class 37: Construction; repair, namely, repair services of individual components in the field of photovoltaic and solar thermal energy; installation services; construction, cleaning, repair and maintenance of systems and plants in the field of renewable energy; scaffolding; roofing services.

Class 39: Transport; packaging and storage of goods; arranging of tours (travel); transmission and transport of electricity, thermal heat, gas or water; delivery of electricity, thermal heat, gas or water for supply to customers; delivery and distribution of energy.

Class 40: Treatment of materials; generation of energy.

Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software; technical analysis and preparation of technical certificates for assessment of projects and project partners; technical planning, technical projects and technical coordination of systems and plants in the field of renewable energy; quality testing of products for certification purposes, design, planning and engineering of as well as development services for third parties in the field of renewable energy; engineering.

Further to a partial rejection of the goods in Class 11 in a parallel opposition, the remaining contested goods and services are the following:

Class 9: Battery chargers; accumulators, electric; electric batteries; flexible circuit boards; solar batteries; photovoltaic modules; solar panels for the production of electricity; battery charging devices for motor vehicles; rechargeable batteries; sockets, plugs and other contacts [electric connections]; electric sockets; light switches; converters, electric; usb cables for cellphones; electronic scales.

Class 11: Electric kettles; refrigerated containers [electric]; electric fans for personal use; air purifying apparatus and machines; ionization apparatus for the treatment of air or water; heat regenerators; solar collectors for heating; water purifying apparatus; pocket warmers; bread toasters; roasting apparatus; coffee machines, electric; ice-cream making machines; refrigerators; cooling apparatus; heaters; foot warmers.

Class 18: Animal skins; briefcases; suitcases; backpacks; document holders [carrying cases]; credit card holders; sports bags; travelling sets [leatherware]; bags for climbers; travel bags; mountaineering sticks; leather straps; credit card cases; pocket wallets; business card cases.

Class 28: Artificial fishing bait; decoys for hunting or fishing; rods for fishing; fish hooks; lines for fishing; fishing tackle; reels for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; apparatus for games; educational toys; ornaments for Christmas trees, except illumination articles and confectionery; artificial Christmas trees; yoga straps.

Class 34: Electronic cigarettes; tobacco pipes; cigar cutters; cigar cases; cigar holders; cigarette filters; pocket machines for rolling cigarettes; cigarette lighters; ashtrays; liquid solutions for use in electronic cigarettes; cigarette tips; flavorings, other than essential oils, for use in electronic cigarettes; tobacco.

Class 35: Advertising; arranging and placing of advertisements; business management consulting; commercial administration of the licensing of the goods and services of others; providing business information via a website; commercial intermediation services; import-export agency services; sales promotion for others; procurement services for others [purchasing goods and services for other businesses]; marketing; consultancy and advisory services in the field of business strategy; market studies; provision of an on-line marketplace for buyers and sellers of goods and services; sponsorship search; search engine optimisation for sales promotion; web site traffic optimisation.

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

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

However, the terms ‘namely’ and ‘exclusively’, used in the opponent’s list of goods and services to show the relationship of individual goods and services to a broader category, are exclusive and restrict the scope of protection only to the goods and services specifically listed.

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

Contested goods in Class 9

The contested accumulators, electric; electric batteries; solar batteries; rechargeable batteries; sockets, plugs and other contacts [electric connections]; electric sockets; light switches; converters, electric are included in, or overlap with, the broad categories of the opponent’s apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity, all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts. Therefore, they are identical.

Photovoltaic modules; solar panels for the production of electricity are identically contained in both lists of goods (including synonyms).

The contested electronic scales overlap with the opponent’s weighing and measuring apparatus and instruments, all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts. Therefore, they are identical.

The contested battery chargers are highly similar to the opponent’s apparatus and instruments for accumulating electricity, all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts, as they usually coincide in producer, relevant public and distribution channels. Furthermore, they are complementary.

The contested battery charging devices for motor vehicles and USB cables for cellphones are at least lowly similar to the opponent’s apparatus and instruments for accumulating electricity, all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts. Although the opponent’s goods are exclusively for the mounting of photovoltaic systems and their parts, they can be used in order to charge the batteries in solar vehicles or solar cellphones. Therefore, the goods under comparison can coincide in producer, relevant public and distribution channels. Furthermore, they can be complementary.

The contested flexible circuit boards are similar to the opponent’s data processing apparatus and computers (not for capturing the measuring results of gas measurement), all the aforesaid goods exclusively for the mounting of photovoltaic systems and their parts, as they usually coincide in producer and distribution channels. Furthermore they are complementary.

Contested goods in Class 11

Solar collectors for heating are identically contained in both lists of goods (including synonyms).

The contested electric kettles; refrigerated containers [electric]; electric fans for personal use; air purifying apparatus and machines; heat regenerators; pocket warmers; bread toasters; roasting apparatus; coffee machines, electric; ice-cream making machines; refrigerators; cooling apparatus; heaters; foot warmers are included in, or overlap with, the broad category of the opponent’s apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating and water conduit purposes of international trade mark registration No 1 080 093 designating the European Union. Therefore, they are identical.

The contested ionization apparatus for the treatment of air or water; water purifying apparatus are at least similar to the opponent’s apparatus for water conduit purposes of international trade mark registration No 1 080 093 designating the European Union, as they usually coincide in producer, relevant public and distribution channels.

Contested goods in Class 18

The contested animal skins; briefcases; suitcases; backpacks; document holders [carrying cases]; credit card holders; sports bags; travelling sets [leatherware]; bags for climbers; travel bags; mountaineering sticks; leather straps; credit card cases; pocket wallets; business card cases are dissimilar to the opponent’s goods and services in Classes 4, 6, 9, 11, 19, 35, 37, 39, 40 and 42, covered by the two earlier marks. In fact they do not have anything in common as they have different producers/providers, they are distributed/provided via different channels to different consumers. Moreover, their natures, purposes and methods of use differ and they are not in competition nor are they complementary.

Contested goods in Class 28

The contested artificial fishing bait; decoys for hunting or fishing; rods for fishing; fish hooks; lines for fishing; fishing tackle; reels for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; apparatus for games; educational toys; ornaments for Christmas trees, except illumination articles and confectionery; artificial Christmas trees; yoga straps are dissimilar to the opponent’s goods and services in Classes 4, 6, 9, 11, 19, 35, 37, 39, 40 and 42, covered by the two earlier marks. In fact they do not have anything in common as they have different producers/providers, they are distributed/provided via different channels to different consumers. Moreover, their natures, purposes and methods of use differ and they are not in competition nor are they complementary.

Contested goods in Class 34

The contested electronic cigarettes; tobacco pipes; cigar cutters; cigar cases; cigar holders; cigarette filters; pocket machines for rolling cigarettes; cigarette lighters; ashtrays; liquid solutions for use in electronic cigarettes; cigarette tips; flavorings, other than essential oils, for use in electronic cigarettes; tobacco are dissimilar to the opponent’s goods and services in Classes 4, 6, 9, 11, 19, 35, 37, 39, 40 and 42, covered by the two earlier marks. In fact they do not have anything in common as they have different producers/providers, they are distributed/provided via different channels to different consumers. Moreover, their natures, purposes and methods of use differ and they are not in competition nor are they complementary.

Contested goods in Class 35

Advertising is identically contained in both lists of services.

The contested arranging and placing of advertisements; sales promotion for others; marketing; sponsorship search; search engine optimisation for sales promotion; web site traffic optimisation are included in the broad category of the opponent’s advertising. Therefore, they are identical.

The contested business management consulting; providing business information via a website; consultancy and advisory services in the field of business strategy; market studies are included in the broad category of the opponent’s business management. Therefore, they are identical.

The contested commercial administration of the licensing of the goods and services of others are included in the broad category of the opponent’s business administration. Therefore, they are identical.

The contested commercial intermediation services include or, overlap with, the opponent’s arranging of contracts for others for the buying and selling of power supplies. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

The contested procurement services for others [purchasing goods and services for other businesses] are at least highly similar to the opponent’s arranging of contracts for others for the buying and selling of power supplies, as they coincide or, are very similar, in their purpose and nature and they may coincide in providers, distribution channels, relevant public and method of use.

The contested import-export agency services are similar to the opponent’s business management as they have the same providers, same distribution channels and target the same relevant public.

The contested provision of an on-line marketplace for buyers and sellers of goods and services are similar to the opponent’s arranging of contracts for others for the buying and selling of power supplies as they may have the same providers and relevant public. They also have the same purpose insofar as they both aim at facilitating the conclusion of a commercial transaction.

b) Relevant public — degree of attention

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

In the present case, the goods and services found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods and services, the frequency of purchase and their price.

c) The signs

and AXITEC
Earlier trade marks	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The earlier marks are both composed of the single word ‘AXITEC’. This word is depicted in black, bold upper-case stylised letters with a red line crossing the word element horizontally but in the background, in the figurative mark, and in upper-case letters, in the word mark.

The contested sign is a figurative mark also composed of a single word, which is ‘XTECH’, depicted in black upper-case stylised letters.

The signs have the letters ‘X’ and ‘TEC’ in common. The components ‘TEC’ in the earlier marks and ‘TECH’ in the contested sign, which are placed in the same positions in the signs, may be perceived by the relevant public as an abbreviation for ‘technical/technology’, with identical or similar spellings in other languages of the relevant territory (e.g. ‘tech’ in Czech, Danish, French, German, Polish and Slovak, and ‘tec’ in Italian, Portuguese and Spanish). Therefore, it is reasonable to assume that both the English-speaking part of the public as well as the non-English speaking part will understand their meanings. In this regard, these components will as such refer to the technical nature of the relevant goods and services. Therefore, they are considered weak for the relevant public in relation to the goods and services at issue. However, neither of the marks under comparison has a meaning as a whole. Even if the components ‘TEC’ in the earlier marks and ‘TECH’ in the contested sign refer to some extent to ‘technical/technology’, the combination of these components with the remaining letters results in invented words that are distinctive in relation to the relevant goods and services. Therefore, although the coincidence in the weak component ‘TEC’ would not be particularly pertinent as such for the reasons mentioned above, the comparison is carried out between the entire signs, ‘AXITEC’ and ‘XTECH’ in order to consider whether the signs show similarities in their remaining parts that render them normally distinctive as a whole.

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

Visually, the signs coincide in ‘*X*TEC*’. They have a similar structure to the extent that each of the signs is composed of one word comprising a similar number of letters. However, they differ in the letters ‘A’ and ‘I’ included before and after the letter ‘X’ of the earlier marks and in the additional letter ‘H’ of the contested sign. Moreover, the signs differ in the stylisation of the figurative marks, which is however not particularly striking and will be perceived as an ordinary means of bringing the verbal elements to the attention of the public.

Therefore, the signs are similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘*X*TEC*’. The pronunciation differs in the sound of the vowels ‘A’ and ‘I’ included before and after the letter ‘X’ of the earlier marks; however, the letter ‘X’ is often pronounced in conjunction with a vowel (for example ‘ics’ in Italian, ‘eks’ in English, ‘iks’ in French, German, etc.), which makes it similar to the beginning of the earlier marks, ‘AX’. The pronunciation further differs in the last letter of the contested sign, ‘H’, although it might even not be pronounced by part of the public.

Therefore, the signs are similar to at least an average degree.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, the weak components ‘TEC/TECH’, of the signs at issue, will be associated with the meaning explained above. However, given that it relates to a weak component, its impact in the assessment of likelihood of confusion will be very limited. Consequently, the signs are conceptually similar only to a low degree.

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 marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier marks as a whole have no meaning for any of the goods and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier marks must be seen as normal, despite the presence of a weak component in the marks, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

In the present case, the goods and services are partly identical or similar to varying degrees and partly dissimilar. They target the general public and professionals; the degree of attention may vary from average to high. The earlier marks’ distinctiveness is considered average.

The conflicting signs are visually similar to an average degree, aurally similar to at least an average degree and conceptually similar to a low degree.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

The weak degree of distinctiveness of the components ‘TEC’/’TECH’ does not in itself preclude the possibility of confusion between the marks, as it is only one of a number of elements entering into assessment of the likelihood of confusion. In addition, these components are in the same positions in the signs and, in combination with other letters, form part of invented distinctive words ‘AXITEC’ and ‘XTECH’, which also share a letter ‘X’ in their first parts.

In view of all the aforementioned, the Opposition Division is of the opinion that the elements of similarity between the marks are sufficient for the consumers, even if their attention is heightened, to believe that the identical or similar (to varying degrees, including to a low degree) goods and services come from the same or economically linked undertakings.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the relevant public and therefore the opposition is partly well founded on the basis of the opponent’s international trade mark registration No 1 080 093 designating the European Union and international trade mark registration No 1 080 369 designating the European Union.

It follows from the above that the contested sign must be rejected for the goods and services found to be identical or similar to varying degrees to those of the earlier trade marks.

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

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Justyna GBYL

Valeria ANCHINI

Edith Elisabeth VAN DEN EEDE

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.