OPPOSITION No B 3 059 842

Gaston Y Daniela, S.A., Calle Velazquez, 42-47, 28001 Madrid, Spain (opponent), represented by Alesci Naranjo Propiedad Industrial SL, Calle Paseo de la Habana 200, 28036 Madrid, Spain (professional representative)

a g a i n s t

Gertrude 26, Zi Les Paluds 350 Avenue du Douard, 13400 Aubagne, France (applicant), represented by Legabrand, 41 rue Papety, 13007 Marseille, France (professional representative).

On 19/09/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 059 842 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 878 300 for the figurative mark . The opposition is based, inter alia, on European Union trade mark registration No 10 078 251 for the figurative mark (TM 1), Spanish trade mark registration No 2 875 357 for the word mark ‘GASTON Y DANIELA’ (TM 2) and Spanish trade mark registration No 3 514 816 for the figurative mark (TM 3). The opponent invoked Article 8(1)(b) EUTMR.

SUBSTANTIATION

According to Article 95(1) EUTMR, in proceedings before it the Office will examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office is restricted in this examination to the facts, evidence and arguments submitted by the parties and the relief sought.

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

According to Article 7(1) EUTMDR, the Office will give the opposing party the opportunity to submit the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.

According to Article 7(2) EUTMDR, within the period referred to above, the opposing party must also file evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as evidence proving its entitlement to file the opposition.

In particular, if the opposition is based on a registered trade mark that is not a European Union trade mark, the opposing party must submit a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in Article 7(1) EUTMDR and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Article 7(2)(a)(ii) EUTMDR. Where the evidence concerning the registration of the trade mark is accessible online from a source recognised by the Office, the opposing party may provide such evidence by making reference to that source — Article 7(3) EUTMDR. However, the opponent has not made reference to such an abovementioned online source or submitted the relevant documents (registration and renewal certificates) for the following trade marks:

 international registration No 777 255 for the word mark ‘GASTON Y DANIELA’,

 Spanish trade mark registration No 2 869 686(7) for the word mark ‘GASTON Y DANIELA’,

 Spanish trade mark registration No 2 752 088(9) for the word mark ‘GASTON Y DANIELA’.

European Union trade mark registration No 3 021 078 for the word mark ‘GASTON Y DANIELA’ is also mentioned in the substantiation documentation. As it is a European Union trade mark, the opponent does not need to evidence it with documents. In any case, this trade mark ceased to exist on 27/01/2013 and cannot be considered for the opposition.

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 has not submitted the request for proof of use by way of a separate document as required by Article 10(1) EUTMDR.

Therefore, the request for proof of use is inadmissible pursuant to Article 10(1) EUTMDR.

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:

TM 1

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 24: Textiles and textile goods, not included in other classes; bed and table covers, except textiles intended for clothing.

Class 27: Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings, not of textile including carpets, wallpaper, lining paper or wallpaper.

Class 35: Advertising; advertising promotions, direct mail advertising; sales promotion (for others); advertising via computer terminals, publication of publicity texts; business management; commercial management assistance in relation to franchising; business administration; office functions; import and export services, commercial retailing and wholesaling, catalogue sales, sales through electronic media of furniture, mirrors (looking glass), picture frames, timber products, cork, cane, reed, wicker, horn, bone, ivory, whalebone, tortoiseshell, amber, mother-of-pearl, meerschaum, substitutes of all these materials or of plastic materials, fabric and textile goods, bed clothes and table (except textiles intended for clothing), carpets, doormats and rugs, mats, linoleum and floor coverings, wall hangings, not of textile including carpets, lining paper or wallpaper and wallpapers.

TM 2

Class 24: Fabrics (except textiles destined to human clothing), quilts and rugs, articles textiles and cloth upholstery.

Class 27: Carpets, mats, mats, linoleos and other products to cover soils, upholstery ( not of fabrics).

TM 3

Class 20: Furniture, mirrors, picture frames.

Class 24: Textiles, and textile goods, not included in other classes, table and bed linen; excluding expresses fabrics intended for making garments for people.

Class 27: Carpets, rugs, mats, linoleum and other floor coverings; wall hangings that are not in textiles.

Class 35: Advertising promotions, dissemination of advertising material; sales to third-party promotions; advertising through publication of advertising texts, computer terminals; commercial business management; support services to the exploitation of a trading company in regime of franchises; business administration; office work; import and export, wholesale to the retail trade and wholesale, sale by catalogue, sale by electronic means; they are all referred exclusively for furniture, mirrors, frames, wood products, cork, cane, rush, wicker, horn, bone, ivory, whale, shell, amber, shell, foam of sea, substitutes for all these materials or materials plastic, textiles and textile products, table and bed linen (with exception of tissues intended for clothing for people), carpets, rugs, mats, linoleum and other coatings soil tapestry murals to non-textiles including carpeting, upholstery or wall papers and wallpapers.

The contested goods are the following:

Class 3: Soaps in liquid or solid form; essential oils; bath salts and pearls for cosmetic purposes; cosmetics; hair products for hair styling and hair care; hair de-colorants; shaving preparations; personal deodorants; oils for cosmetic purposes; creams for cosmetic purposes, make-up preparations; tissues impregnated with cosmetic lotions; temporary tattoos in the form of patches for cosmetic use; nail care preparations, nail varnish; nail varnish removers, lacquer removing preparations, false nails; eyelashes (false -); depilatory preparations; products for cleaning, incense, joss sticks, scented wood, potpourris; perfumery, perfume, perfume water, perfume water, extracts of flowers, toilet water, fragrances for laundry purposes, scented sachets, perfumed wipes and tissues (perfume), room perfumes, household perfumes, perfumed substances for diffusers (perfume).

Class 14: Key rings (trinkets or fobs); rings (jewellery), bracelets (jewellery), bangles (jewellery), cuff bracelets (jewellery), necklaces (jewellery), chains (jewellery), small chains (jewellery), trinkets (jewellery), earrings, brooches (jewellery), ornamental pins, pendants, medals, lockets; cuff links, tie pins, horological and chronometric instruments, watches, watch straps, chains (watch -), gold thread, silver thread, jewel cases, jewellery cases and boxes, cases for clock and watch making, cases for watches (presentation), works of art of precious metal.

Class 18: Leather and imitation leather; handbags, shoulder bags, backpacks, beach bags, sports bags (other than those adapted for the goods they are designed to contain), wheeled shopping bags, bags (net —) for shopping, pouches (handbags), satchels, school bags, baskets of wicker (bags), shopping bags, nappy bags, trunks [luggage], valises, travelling bags, traveling trunks, suitcases, small suitcases with wheels, garment bags for travel, toilet kit bags (empty), vanity cases; wallets, purses, key cases, briefcases, card cases (notecases), saddlery, boxes made of leather; umbrellas, parasols, laces (leather -).

Class 24: Fabrics for textile use, bath linen (except clothing), washing mitts and face towels of textile, beach towels and sheets, foutas, linens, travelling rugs [lap robes], table linen, tablecloths, not of paper, oilcloth, table runners, place mats, not of paper, bed linen, bed blankets, bed sheets, pillow shams; cloth handkerchiefs.

Class 25: Clothing, in particular coats, blousons, rainproof clothing, rain ponchos, parkas, suits, jackets [clothing], overalls, trousers, denim jeans, shorts, Bermuda shorts, gowns, skirts, petticoats; tee-shirts, vest tops, sweaters, jumpers, shirts, waistcoats, sweat shirts; tracksuit bottoms, leggings; tracksuit tops; clothing combination, combishorts; bathing suits, beachwear, beach wraps, lingerie, underclothing, pyjamas, dressing gowns, bath robes, kimonos (clothing), socks, tights, scarfs, sashes for wear, stoles, ponchos, neckties, belts (clothing), braces for clothing (suspenders), headbands (clothing), gloves (clothing), headgear, caps, footwear, beach footwear, ski boots or boots for sports, rain boots, wooden shoes, shoes, slippers, carpet slippers.

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

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

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

Contested goods in Class 3

The contested goods, which can be generally referred to as cosmetics, are dissimilar to the goods in Classes 20 (furniture), 24 (textiles) and 27 (carpets) of TM 1, TM 2 and TM 3 as the nature, purpose, distribution channels, sales outlets, producers and method of use of these goods are different. They are also neither in competition nor complementary.

The contested goods are also dissimilar to the services of Class 35 of TM 1 and TM 3. In principle, goods are not similar to services, as their nature, purpose, distribution channels, producers/providers differ. However, one exception is when the retail services concerning the sale of particular goods are similar to those particular goods. Nevertheless, in the present case the opponent’s retail services are limited to the goods in Classes 20, 24 and 27 and not Class 3. As a consequence, the contested goods in Class 3 are dissimilar to the opponent’s services in Class 35.

Contested goods in Class 14

The same arguments as presented in relation to Class 3 are applicable to the contested goods in Class 14 (jewellery), as these goods are dissimilar to the opponent’s goods in Classes 20 (furniture), 24 (textiles) and 27 (carpets) and services in Class 35 of TM 1, TM 2 and TM 3.

Contested goods in Class 18

The contested leather and imitation leather and the opponent’s textiles and textile goods of TM 1, TM 2 and TM 3 are similar as both products (materials) are used in manufacturing goods, and therefore have the same purpose and can be in competition.

The contested handbags, shoulder bags, backpacks, beach bags, sports bags (other than those adapted for the goods they are designed to contain), wheeled shopping bags, bags (net —) for shopping, pouches (handbags), satchels, school bags, baskets of wicker (bags), shopping bags, nappy bags, trunks [luggage], valises, travelling bags, traveling trunks, suitcases, small suitcases with wheels, garment bags for travel, toilet kit bags (empty), vanity cases; wallets, purses, key cases, briefcases, card cases (notecases), saddlery, boxes made of leather; umbrellas, parasols, laces (leather -) are dissimilar to the opponent’s textiles and textile goods of TM 1, TM 2 and TM 3 as the nature, purpose, method of use, providers, distribution channels and sales outlets are different. Furthermore, they are neither in competition nor complementary.

The contested goods in Class 18 are also dissimilar to the goods in Classes 20 (furniture), 24 (other textile goods), 27 (carpets) and other services in Class 35 as the nature, purpose, distribution channels and producers/providers are different, and they are neither in competition nor complementary.

Contested goods in Class 24

The contested goods in Class 24 are included in the broad category of, or overlap with, the opponent’s textiles, and textile goods (excluding expresses fabrics intended for making garments for people) of TM 1, TM 2 and TM 3. None of the contested goods are intended for clothing, so the exclusion does not limit the identity between the goods. Therefore, they are identical.

Contested goods in Class 25

The contested goods in Class 25 are dissimilar to the opponent’s textiles, and textile goods since these expressly exclude textiles intended for clothing, which excludes also the contested bath robes, in Class 24 of TM 1, TM 2 and TM 3. Furthermore, these goods are also excluded from the opponent’s retail services in Class 35 of TM 1 and TM 3.

The contested goods in Class 25 are also dissimilar to the goods in Classes 20 (furniture), 27 (carpets) and other services in Class 35 as the nature, purpose, distribution channels and producers/providers are different, and they are neither in competition nor complementary.

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 identical and similar to varying degrees are directed at the public at large. The degree of attention is considered to be average.

c) The signs

TM 1 TM 2 GASTON Y DANIELA TM 3
Earlier trade marks	Contested sign

The relevant territory is the European Union and Spain.

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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

The earlier signs are composed of the following elements:

 Verbal element ‘GASTON’

 Verbal element ‘Y’

 Verbal element ‘DANIELA’

 Verbal element ‘desde 1876’

 Two different figurative devices of a parrot.

To make a thorough comparison between the signs, the Opposition Division will first analyse each of these components of the earlier signs and the components of the contested sign.

The verbal element ‘GASTON’ of the earlier sign, depending on its position, may be considered a first name or a surname, but in any case most of the relevant public of the European Union, which includes Spain, will consider it a name. It is distinctive as it not descriptive, allusive or otherwise weak/non-distinctive for the relevant goods.

The verbal element ‘Y’ will be understood by the Spanish-speaking public as it is a Spanish word meaning ‘and’. Another part of the relevant public might not understand the meaning, but because of the composition of the mark, they might consider it a word linking both verbal elements. This element is not distinctive, as it is only a conjunction, which cannot indicate the origin of the goods.

The verbal element ‘DANIELA’ will be considered as a first name by most of the relevant public of the European Union, which includes Spain. This element is distinctive as it not descriptive, allusive or otherwise weak/non-distinctive for the relevant goods.

The verbal element ‘desde 1876’ is a subordinate element in TM 1 due to its smaller size. As it is based on a year, the relevant public could infer that it means ‘since’ the year 1876. Therefore, it is a non-distinctive element.

In general terms, the parrot device in TM 1 and TM 3, although slightly different in each, is a distinctive element as it is not descriptive, allusive or otherwise weak/non-distinctive for the relevant goods.

In none of the earlier signs can an element be considered more dominant than other elements.

The contested sign is composed of two words, ‘GERTRUDE’ and ‘GASTON’, inside a stylised triangle with a red and black border and divided by a large, prominent cross in the middle. The relevant public will understand the verbal elements as two first names, or maybe as a first name and a surname, as one is under the other. The figurative element of the cross is considered to be distinctive as it has no relation to the relevant goods. Furthermore, the figurative element of the contested trade mark overshadows the verbal elements of the mark by virtue of its central position and size. The figurative element is the visually dominant element of the contested trade mark. There is the possibility that part of the relevant public will recognise the cross as a ‘plus’, rendering the sign ‘GERTRUDE PLUS GASTON’. However, for others it will only be a cross.

The verbal element ‘GERTRUDE’ of the contested sign will be perceived as a first name or a surname by the relevant public. The Spanish public in particular will recognise it, as the name ‘Gertrudis’ is known in Spain although it has foreign roots. This verbal element is distinctive as it not descriptive, allusive or otherwise weak/non-distinctive for the relevant goods.

Having clarified the above elements, the Opposition Division will start the comparison with TM 2, for which the relevant territory is Spain. It is a word mark, and therefore the similarities between the signs are greater as it has no distinctive figurative element.

The Opposition Division will assess the signs from this perspective as this is the most advantageous scenario for the opponent.

Visually, the signs coincide in ‘GASTON’, which is, however, placed at the beginning in the earlier sign and at the end in the contested sign. They differ in the verbal elements ‘Y’ and ‘DANIELA’ in the earlier sign and ‘GERTRUDE’ in the contested sign. The relevance of the figurative element of the cross in the contested sign is not to be underestimated. Besides being eye-catching, it divides the two verbal elements in half, thereby diminishing the similarity between the signs established through the common verbal element ‘GASTON’, as it might seem that this verbal element is divided into two words, ‘GAS’ and ‘TON’.

Therefore, the signs are visually similar to a low degree.

Aurally, the pronunciation of the signs coincides in the word ‘GASTON’, present identically in both signs. The pronunciation differs in the verbal elements ‘DANIELA’ of the earlier sign and ‘GERTRUDE’ of the contested sign and the sequence of all these words, namely inverted. Moreover, the earlier mark has the element ‘Y’, which has no counterpart in the contested sign. The figurative element of the contested sign cannot be pronounced and cannot make a difference in the aural comparison. However, if the cross in the middle were recognised as a ‘plus’, rendering the sign ‘GERTRUDE PLUS GASTON’, this would be another element emphasising the difference between the signs.

Therefore, the signs are aurally similar to a low degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs include the name ‘GASTON’, the signs will be considered similar to this extent. However, the other names — either after or before ‘GASTON’ — will not be considered conceptually similar as the relevant public will consider them different. The triangle figurative element in the contested sign does not evoke any concept. However, the central element does evoke a clear concept of a cross or a plus, underlining another difference between the signs.

Therefore, the signs as a whole are conceptually similar 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 marks

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 trade 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 some non-distinctive element in earlier TM 1).

e) Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

The goods are found to be identical, similar (to varying degrees) and dissimilar. Most of the goods were found to be dissimilar. As similarity of goods 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.

The earlier mark has a normal degree of distinctiveness and the relevant public will pay an average level of attention when encountering these goods.

The Opposition Division has first compared the Spanish word mark (TM 2) with the contested sign, as this earlier sign has no distinctive elements (such as the parrot in the other two earlier signs) that might increase the differences between the marks.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by them, bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23). A comparison of trade marks must integrate, therefore, an assessment of the distinctive character and dominance of their elements, if any, and the impact of their overall impression.

Based on such a comparison, the Opposition Division found that the visual, aural and conceptual similarities are only to a low degree, as the only common element is ‘GASTON’. The differences are the second name, ‘DANIELA’ or ‘GERTRUDE’ (in a different order), as well as the striking, dominant figurative element of the contested mark, in which the verbal elements have a weak impact.

The other two earlier trade marks of the opponent, TM 1 and TM 3, are not identical, but both include the figurative element of a parrot:

TM 1: TM 3: .

The Opposition Division considers that the differences with regard to the contested sign are greater due to the existence of the additional figurative element of a parrot and the stylisation of the verbal elements (although the words are still clearly identifiable). TM 1 also includes the non-distinctive verbal element ‘desde 1876’, which will have little or no impact in the comparison due to its non-distinctiveness. With the figurative elements (the parrot and the stylisation of the verbal elements), the visual and conceptual similarities are even less, as the parrot is distinctive for the relevant goods and, moreover, conveys a clear concept and is visually striking. Therefore, visually the parrot reinforces the dissimilarity between the signs in their overall impressions. Conceptually, the relevant public — either in Spain or in the European Union in general — will see and understand the parrot as a bird, underlining even more the differences between the signs.

Therefore, although the signs coincide aurally in the element ‘GASTON’, there is no likelihood of confusion as the marks’ overall impressions differ, mainly due to the distinctive figurative element of the contested sign.

Moreover, the goods themselves are fairly ordinary consumer products that are commonly purchased in establishments where goods are arranged on shelves and consumers are guided by the visual impact of the mark they are looking for (15/04/2010, T‑488/07, Egléfruit, EU:T:2010:145).

The opponent and the applicant refer to previous decisions of the Office to support their arguments. However, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous decisions of the Office are not binding, their reasoning and outcome were duly considered when deciding upon this particular case. The opposition decisions Karma v Karma Kidz (25/01/2012, B 1 801 672) and JC v JC Collezione (24/01/2012, B 1 237 439) have their own particularities, which cannot be used in this particular case because, although all two include the distinctive verbal element in the contested sign, the other verbal element — ‘Kidz’ or ‘Collezione’ — is either weak or non-distinctive, and furthermore only describes the other distinctive element of the contested sign. In the present case, the contested sign has additional distinctive elements, such as the name ‘GERTRUDE’ and the figurative elements. Therefore, the outcomes are different, as the Opposition Division has to take into account the particularities of each case as well as the arguments presented by the parties.

While the Office does have a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration, the way in which these principles are applied must be consistent with respect to legality. It must also be emphasised that each case must be examined on its own individual merits. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. Finally, a party in proceedings before the Office may not rely on, or use to its own advantage, a possible unlawful act committed for the benefit of some third party in order to secure an identical decision.

In view of the above, it follows that, even if the previous decisions submitted to the Opposition Division are to some extent factually similar to the present case, the outcome may not be the same.

Considering all the above, even with identical and similar goods, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Gonzalo BILBAO TEJADA

Astrid Victoria WÄBER

Martin EBERL

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.