OPPOSITION No B 3 052 101

Amphitech (S.à.r.l.), 1 rue Robert et Sonia Delaunay, 75011 Paris, France (opponent), represented by Cabinet Vander-Heym, 22 avenue de Friedland, 75008 Paris, France (professional representative)

a g a i n s t

Hangzhou Yiyuan Technology Co., Ltd., RM 301-6, BLD 1, No. 1428, Huanding Road, DingLan Subdistrict, Jianggan District, 310021 Hangzhou, Zhejiang, People’s Republic of China (applicant), represented by Eurochina Intellectual Property, Calle San Mateo, 65 – Local 1 ‘Llopis & Asociados’, 03012 Alicante, Spain (professional representative).

On 28/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 052 101 is partially upheld, namely for the following contested goods:

Class 9: Desk or car mounted units incorporating a loudspeaker to allow a telephone handset to be used hands-free; headphones; earbuds; audio speakers; wireless speakers; access control systems (automatic -).

2. European Union trade mark application No 17 768 318 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 17 768 318 for the figurative mark , namely against all the goods in Class 9. The opposition is based on French trade mark registration No 98 750 292 and international trade mark registration No 709 477 designating the European Union, both registered for the word mark ‘AMPHITECH’. 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 the trade marks on which the opposition is based.

The date of filing of the contested application is 15/02/2018. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use respectively in France and in the European Union from 15/02/2013 to 14/02/2018 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 and services on which the opposition is based, namely the following:

French trade mark registration No 98 750 292

Class 9: Telephone equipment and, particularly, telephone sets, telephone wires, telephone transmitters, modems, intercoms, answering machines, entrance interphones, commutators; software and, particularly, telecommunication software; localising, identification and access control devices; electronic surveillance and alarm devices; equipment for recording, transmitting and reproducing sound or images; computers, computer peripheral devices and connectors; data processing apparatus.

Class 37: Installation of electronic telephone, surveillance, alarm and access control equipment; building computer networks.

Class 42: Software analysis for computers; on site and remote surveillance, of industrial installations and, particularly, of telephone exchanges; technical surveys.

International trade mark registration No 709 477 designating the European Union

Class 9: Telephone equipment and, particularly, telephone sets, telephone wires, telephone transmitters, modems, intercoms, answering machines, entrance interphones, commutators; software and, particularly, telecommunication software; localising, identification and access control devices; electronic surveillance and alarm devices; equipment for recording, transmitting and reproducing sound or images; computers, computer peripheral devices and connectors; data processing apparatus.

Class 37: Installation of electronic telephone, surveillance, alarm and access control equipment; building computer networks.

Class 42: Software analysis for computers; on site and remote surveillance, of industrial installations and, particularly, of telephone exchanges; technical surveys.

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 marks for the goods or services in respect of which they are registered and on which the opposition is based.

On 14/09/2018, in accordance with Article 10(2) EUTMDR, the Office gave the opponent until 24/11/2018 to submit evidence of use of the earlier trade marks. This deadline was extended until 24/01/2019, following the opponent’s request. On 15/01/2019, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following:

• Documents 1-2: an attestation of company’s turnover from an external auditor in French (with English translation). However, there is no information regarding the goods or services that have enabled the company to achieve this turnover.

• Document 3: 31 invoices dated from 2014 to 2018, issued to French addresses, one to a Luxembourg client and four to German clients. The mark ‘AMPHITECH’ is displayed on the top of the invoices.

• Document 4: brochures for intercoms, in French with hand written translations of some ‘intercoms’; the opponent’s mark ‘Amphitech’ is displayed at the top of most of the brochures.

In addition, on 22/01/2019, also within the time limit, the opponent provided the following:

• Document 1-2: certificate of registration of the earlier French trade mark registration (and its translation in English).

• Document 3: minutes of the General Assembly deciding the transformation of the opponent in Société par actions simplifiée.

Place of use

The evidence mostly relates to France. This can be inferred, inter alia, from the invoices and the brochures. Some invoices were also issued to recipients in other countries, namely Germany and Luxembourg.

Therefore, the evidence relates to the relevant territories (France and the European Union).

Time of use

As regards the time of use, it has to be borne in mind that 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).

Most of the evidence is dated within the relevant period. Some evidence is dated beyond the relevant period, confirming use within the relevant period. Therefore, there are sufficient indications in relation to the time of use.

Extent of use

In assessing the extent of the use made of the earlier mark, account must be taken, in particular, of the commercial volume of all the acts of use and the duration of the period in which those acts of use occurred and the frequency of those acts (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The documents submitted by the opponent provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. This conclusion results, in particular, from the invoices (36 in total) spread over four years, and for a relatively high amount.

The applicant argues that this is insufficient, in terms of number of invoices and amount of items sold. However, the purpose of the proof of use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the mark (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 36-38).

Furthermore, the use of the mark can be considered sufficient as the invoices are submitted for illustrative purposes as can be seen from their numeration that they are not sequenced, but are spaced from each other (27/02/2015, T‑41/12, L’Wren Scott, EU:T:2015:125, § 41 and 42; 24/05/2012, T‑152/11, Mad, EU:T:2012:263, § 65). Therefore, the applicant’s arguments must be set aside.

As regards the argument pointed out by the applicant that part of the invoices are issued to the sister company, it must be recalled that the use by companies, which are economically related to the opponent, such as members of the same group of companies (affiliates, subsidiaries, etc.) is presumed to be use of that mark with the consent of the opponent and is therefore to be deemed to constitute use by the opponent (30/01/2015, T‑278/13, now, EU:T:2015:57, § 38).

It follows from the above that there are sufficient indications regarding the extent of use of the earlier marks, at least in relation to some of the registered goods. This issue will be discussed further in the following section.

Nature of use

Use of the sign as a trade mark

Nature of use requires, inter alia, that the sign be used as a trade mark, that is, to identify origin, thus making it possible for the relevant public to distinguish between goods and/or services of different providers.

The materials submitted, in particular the brochures, clearly demonstrate that the earlier signs were used as trade marks to indicate the commercial origin of the goods they designate.

The applicant argued that the mark is not affixed on the products. However, as clearly indicated in Article 10(4) EUTMDR, it is not necessary for the mark to be affixed to the goods themselves (12/12/2014, T‑105/13, TrinkFix, EU:T:2014:1070, § 28-38) A depiction of the mark on packaging, catalogues, advertising material or invoices relating to the goods and services in question constitutes direct evidence that the mark has been put to genuine use. Therefore, the applicant’s argument must be set aside.

Therefore, the Opposition Division considers that the evidence demonstrates use of the earlier signs as trade marks.

Use of the sign as registered

According to Article 18(1), second subparagraph, point (a) EUTMR, the following also constitutes 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. When examining the use of an earlier registration for the purposes of Article 47(2) and (3) EUTMR, Article 18 EUTMR may be applied by analogy to assess whether or not use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

The purpose of Article 18(1), second subparagraph, point (a) EUTMR

is to allow its proprietor, on the occasion of its commercial exploitation, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in negligible elements, so that the two signs can be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade.

(23/02/2006, T‑194/03, Bainbridge, EU:T:2006:65, § 50).

The trade marks were registered as a word mark. In the invoices and in the brochures, the sign is used as follows: .

Word marks are considered used as registered regardless of typeface, use of upper- or lower-case or colour. Therefore, the stylised lettering used is an acceptable variation of the sing as registered.

In addition, the word ‘Amphitech’ is clearly the dominant component and the typeface of the verbal element, as well as the shield, have no impact on the distinctiveness of the earlier marks.

Therefore, the mark has been used in a form which does not alter the earlier marks’ distinctive character.

Use in relation to the registered goods and services

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).

The opponent has based its opposition on the following goods and services:

Class 9: Telephone equipment and, particularly, telephone sets, telephone wires, telephone transmitters, modems, intercoms, answering machines, entrance interphones, commutators; software and, particularly, telecommunication software; localising, identification and access control devices; electronic surveillance and alarm devices; equipment for recording, transmitting and reproducing sound or images; computers, computer peripheral devices and connectors; data processing apparatus.

Class 37: Installation of electronic telephone, surveillance, alarm and access control equipment; building computer networks.

Class 42: Software analysis for computers; on site and remote surveillance, of industrial installations and, particularly, of telephone exchanges; technical surveys.

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 Opposition Division agrees with the applicant and considers that the evidence proves use only for intercoms. This can be inferred from the brochures where only intercoms are mentioned, with the exception of one call phone panel. However, this can also be considered as being an intercom, as the main function of this product is to reach and to have a direct line to emergency services.

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.

In the present case, taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade marks during the relevant period in the relevant territories for intercoms in Class 9.

However, the evidence filed by the opponent does not show genuine use of the trade marks for the remaining goods and services covered by the earlier trade marks.

Therefore, the Opposition Division will only consider the abovementioned intercoms (Class 9) in its further examination of the opposition.

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.

1. The goods

Following what has been stated in the previous section, the goods on which the opposition is based are the following:

Class 9: Intercoms.

The contested goods are the following:

Class 9: Battery chargers; chargeable batteries; wireless chargers; USB hubs; electrical sockets; electric plugs; power strips with movable sockets; power switches; electric cables; data cables; cases for mobile phones; desk or car mounted units incorporating a loudspeaker to allow a telephone handset to be used hands-free; stands adapted for tablet computers; headphones; earbuds; audio speakers; wireless speakers; computer hardware; access control systems (automatic -); cell phone battery chargers for use in vehicles.

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.

The opponent’s intercoms are devices that people speak into when they want to communicate with someone who is inside a building, in a different room, in part of a place, etc.

The contested desk or car mounted units incorporating a loudspeaker to allow a telephone handset to be used hands-free; headphones; earbuds; audio speakers; wireless speakers; access control systems (automatic -) are at least similar to a low degree to the opponent’s intercoms. These goods have the same distribution channels and they target the same public. In addition, the contested desk or car mounted units incorporating a loudspeaker to allow a telephone handset to be used hands-free; headphones; earbuds; audio speakers; wireless speakers and the opponent’s intercoms share the same nature and purpose. The contested access control systems (automatic -) and the opponent’s goods are complementary.

The remaining contested goods (namely: battery chargers; chargeable batteries; wireless chargers; USB hubs; electrical sockets; electric plugs; power strips with movable sockets; power switches; electric cables; data cables; cases for mobile phones; stands adapted for tablet computers; computer hardware; cell phone battery chargers for use in vehicles) have different natures and purposes but they can be grouped in the following categories: batteries and their accessories, cables, electrical products, accessories for phones and tablets, computer hardware and headphones. These contested goods and the opponent’s goods do not have the same natures, purpose or methods of use. They are neither complementary nor in competition. Finally, they do not share the same distribution channels and usual producers and they do not target the same specific public.

2. Relevant public — degree of attention

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

In the present case, the goods found to be at least similar to a low degree are directed at the public at large. The applicant considers that the opponent’s goods are only directed at professionals. The Opposition Division fully disagrees as the general public also uses and hence is likely to buy intercoms for their homes.

The degree of attention is average.

3. The signs

AMPHITECH
Earlier trade marks	Contested sign

The relevant territory is France in relation to the earlier French trade mark registration, and the European Union in relation to the earlier international trade mark registration designating 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).

As a preliminary remark, as regards the applicant’s arguments, namely that the opponent uses its mark as such , this argument must be disregarded, because under Article 8 of the EUTMR, only signs as registered and goods and services as established in the wording should be taken into account, not goods and services and signs as actually used (17/01/2012, T‑249/10, Kico, EU:T:2012:7, § 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). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

As one of the earlier marks is a French trade mark registration, the Opposition Division finds it appropriate to focus on the French-speaking part of the public regarding the earlier international registration designating the European Union. This choice is also based on the fact that in accordance with French pronunciation rules, the sequences of letters ‘AN’ and ‘AM’, which are the beginnings of both marks share the same pronunciation which increases the phonetic similarity between the marks.

The earlier marks are the word marks ‘AMPHITECH’. The contested sign is a figurative mark consisting of the verbal element ‘ANCITECH’, depicted in a slightly fanciful black typeface. The verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37; 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

As regards the verbal elements ‘AMPHITECH’ and ‘ANCITECH’, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23; 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 25). However, the Court also holds that consumers, when perceiving a word sign, will break it down into word elements that, for them, have a concrete meaning or resemble words known to them (11/11/2009, T‑277/08, Citracal, EU:T:2009:433, § 55).

Although the suffix ‘-TECH’, identically included in the marks, has at most a low degree of distinctiveness, it will be recognised by the targeted public as the short version of the word ‘technology’. The use of ‘tech’ as a shortened form for technology is customary, and has become part of general usage in word combinations such as ‘high-tech’ for ‘high technology’ and ‘biotech’ for ‘biotechnology’ (11/01/2019, R 57/2018‑1, FENNOTECH / FINOTECH (fig.), § 34).

As regards the components ‘AMPHI’ and ‘ANCI’, the Opposition Division considers that these elements will be seen as meaningless. Even if, as correctly pointed out by the applicant, the verbal element ‘AMPHI’ may have a meaning, insofar as it is the diminutive of the word ‘AMPHITHÉÂTRE’, this meaning is so far removed from the field of intercoms, that it is very unlikely that the targeted public will think about it. Moreover, the Opposition Division does not agree with the applicant’s claim that ‘AMPHI’ may also be understood as a prefix meaning ‘double’. This element has no direct meaning in relation to the relevant goods and has an average degree of distinctiveness.

‘ANCI’ is meaningless and has an average degree of distinctiveness in relation to the relevant goods.

There is no element that can be considered clearly more dominant (eye-catching) in the contested sign.

Visually, the signs coincide in the string of letters ‘A**(*)ITECH’. However, they differ in their middle parts, the letters ‘NC’ in the contested sign and ‘MPH’ in the earlier marks.

As already explained, consumers rather focus on verbal elements and therefore, the difference coming from the contested sign’s typeface should not be overrated.

Considering that the signs have a highly similar length (nine versus eight letters) and have the same initial and five final letters, the Opposition Division considers that the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘AN’/ ‘AM’ and ‘ITECH’, present identically in both signs. They only differ because of the sound created by the letters ‘PHI’ of the earlier marks and ‘SI’ of the contested sign. However, according to French pronunciation rules, ‘PH’ is pronounced as ‘f’, which means the signs at issue will be pronounced as ‘a*/fi/tEk’ for the earlier marks and ‘a*/si/tEk’ for the contested sign.

Given the foregoing, and bearing in mind that the marks share the same rhythm, the signs are aurally similar to a high degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be perceived as referring to the weak concept of ‘technology’, the signs are conceptually similar to a low degree only.

Contrary to the applicant’s claim, it is very unlikely that even part of the public might think of the meaning conveyed by ‘AMPHI’ in the earlier marks and therefore, it cannot be considered that this element introduces any conceptual difference between the signs.

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

4. Distinctiveness of the earlier marks

The distinctiveness of the earlier marks 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 trade marks have 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 marks must be seen as normal, despite the presence of a weak element in the marks, as stated above in section c) of this decision.

5. 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).

The signs are visually similar to an average degree, aurally similar to a high degree and conceptually similar to a low degree, insofar as both signs contain the string of letters ‘A**(*)ITECH’ and refer to the same concept of ‘technology’. The goods target the general public displaying an average degree of attention and they are similar to at least a low degree. The earlier marks are distinctive to a normal degree.

Even if the goods are only similar to at least a low degree, the Opposition Division considers that the signs are sufficiently similar overall to outweigh this lower degree of similarity of the goods.

Moreover, 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).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the French public and the French-speaking part of the public in the European Union and therefore the opposition is partly well founded on the basis of the opponent’s French trade mark registration No 98 750 292 and international trade mark registration No 709 477 designating the European Union. 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 at least a low degree 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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Marine DARTEYRE

Birgit FILTENBORG

Loreto URRACA LUQUE

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.