OPPOSITION No B 3 063 045

OMV Refining & Marketing GmbH, Trabrennstraße 6-8, 1020 Wien, Austria (opponent), represented by Schönherr Rechtsanwälte GmbH, Schottenring 19, 1010 Wien, Austria (professional representative)

a g a i n s t

Vita Burger Srl, Via Magenta 35, 10128 Torino, Italy (applicant), represented by Paolo Fortina, Piazza Castello 24, 20121 Milano, Italy (professional representative).

On 21/10/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 063 045 is upheld for all the contested goods and services, namely:

Class 29: Potato crisps; French fries; Peeled potatoes; Processed potatoes; Boiled potatoes; Potato sticks; Potato salad; Potato-based gnocchi; Hamburgers; Uncooked hamburger patties; Vegetable burgers; Soy burger patties; Tofu patties; Fruit juices for cooking; Dips; Pickles; Mushrooms, preserved; Mushrooms, prepared; Dried edible mushrooms; Mushrooms puree; Tomato juice for cooking; Tomato purée; Tomato paste; Tomato extracts; Tofu; Fermented bean curd; Uncongealed tofu (Tofu nao); Beancurd sticks; Fried tofu pieces (abura-age); Yuba [tofu skin]; Hummus [chickpea paste]; Processed chickpeas; Processed eggplant; Aubergine paste; Eggplant parmigiana; Carrots; Peeled carrots; Cheddar cheese; Spinach [prepared]; Frozen spinach; Cooked spinach; Canned spinach; Processed beets; Almonds, ground; Processed almonds; Almond milk; Almond milk for culinary purposes; Almond milk-based beverages; Truffle juice; Truffle cheeses; Truffle-based spread products (truffle creams); Truffle paste; Truffle-based oils; Salted nuts; Shelled nuts; Flavoured nuts; Edible nuts; Roasted nuts; Spiced nuts; Prepared walnuts; Candied nuts; Mashed potato; Potato-based dumplings; Potato pancakes; Potato fritters; Potato flakes; Potato-based salads; Vegetable juice concentrates for food; Nut-based spreads; Milk shakes.

Class 30: Hamburgers contained in bread rolls; Hamburgers being cooked and contained in a bread roll; Sauces; Spicy sauces; Ready-made sauces; Sauces [condiments]; Relish [condiment]; Salsas; Dressings for salad; Cooking sauces; Mushroom sauces; Tomato sauce; Almond pastries; Almond cake; Truffle salt; Truffle honey; Truffle flour; Potato flour; Rice salad; Sandwiches containing salad; Mayonnaise; Vegan mayonnaise; Imitation mayonnaise; Mayonnaise-based sauces; Mayonnaise-based spreads; Mayonnaise and ketchup-based spreads; Mayonnaise with pickles; Tomato ketchup; Ketchup [sauce]; Food condiment consisting primarily of ketchup and salsa; Bread; Crisp breads; Fresh bread; Pre-baked bread; Wholemeal bread; Filled bread rolls; Semi-baked bread; Multigrain bread; Low-salt bread; Gluten-free bread; Bread flavoured with spices; Fruited malt loaf; Gingerbread; Bread with sweet red bean; Cornflour bun bread (almojábana); Chocolate spreads for use on bread; Basil, dried; Processed herbs; Seaweed [condiment]; Dried herbs; Herbal infusions.

Class 32: Juices; Fruit juice concentrates; Aerated fruit juices; Mixed fruit juice; Fruit juice beverages; Non-alcoholic beverages containing fruit juices; Beverages consisting principally of fruit juices; Non-alcoholic sparkling fruit juice drinks; Beverages consisting of a blend of fruit and vegetable juices; Tomato juice [beverage]; Vegetable juices [beverages]; Green vegetable juice beverages; Non-alcoholic beverages containing vegetable juices; Soft drinks; Waters [beverages]; Energy drinks; Vegetable smoothies; Smoothies.

Class 43: Snack-bar services; Fast-food restaurant services; Take-away fast food services; Bar services; Juice bars; Takeout restaurant services; Mobile restaurant services; Hospitality services [food and drink]; Serving food and drinks; Restaurant services incorporating licensed bar facilities.

2. European Union trade mark application No 17 930 720 is rejected for all the contested goods and services. It may proceed for the remaining goods.

3. The applicant bears the costs, fixed at EUR 620.

REASONS

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 17 930 720 (figurative mark), namely against all the goods and services in Classes 29, 30, 32 and 43. The opposition is based on, inter alia, Austrian trade mark registration No 279 205 ‘VIVA’ (word mark). The opponent invoked, inter alia, Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds for refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

 The signs must be either identical or similar.

 The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

 Risk of injury: use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T‑345/08 & T‑357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

a) Reputation of the earlier trade mark

According to the opponent, the earlier trade mark has a reputation in Austria.

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

In the present case, the contested trade mark was filed on 13/07/2018. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in Austria prior to that date. The evidence must also show that the reputation was acquired for the services for which the opponent has claimed reputation, namely:

Class 35: Retail services, in particular of a filling station shop, featuring food, beverages.

Class 43: Providing of food and drink, in particular in cafes, canteens, restaurants, snack bars and inns.

The opposition is directed against the following goods and services:

Class 29: Potato crisps; French fries; Peeled potatoes; Processed potatoes; Boiled potatoes; Potato sticks; Potato salad; Potato-based gnocchi; Hamburgers; Uncooked hamburger patties; Vegetable burgers; Soy burger patties; Tofu patties; Fruit juices for cooking; Dips; Pickles; Mushrooms, preserved; Mushrooms, prepared; Dried edible mushrooms; Mushrooms puree; Tomato juice for cooking; Tomato purée; Tomato paste; Tomato extracts; Tofu; Fermented bean curd; Uncongealed tofu (Tofu nao); Beancurd sticks; Fried tofu pieces (abura-age); Yuba [tofu skin]; Hummus [chickpea paste]; Processed chickpeas; Processed eggplant; Aubergine paste; Eggplant parmigiana; Carrots; Peeled carrots; Cheddar cheese; Spinach [prepared]; Frozen spinach; Cooked spinach; Canned spinach; Processed beets; Almonds, ground; Processed almonds; Almond milk; Almond milk for culinary purposes; Almond milk-based beverages; Truffle juice; Truffle cheeses; Truffle-based spread products (truffle creams); Truffle paste; Truffle-based oils; Salted nuts; Shelled nuts; Flavoured nuts; Edible nuts; Roasted nuts; Spiced nuts; Prepared walnuts; Candied nuts; Mashed potato; Potato-based dumplings; Potato pancakes; Potato fritters; Potato flakes; Potato-based salads; Vegetable juice concentrates for food; Nut-based spreads; Milk shakes.

Class 30: Hamburgers contained in bread rolls; Hamburgers being cooked and contained in a bread roll; Sauces; Spicy sauces; Ready-made sauces; Sauces [condiments]; Relish [condiment]; Salsas; Dressings for salad; Cooking sauces; Mushroom sauces; Tomato sauce; Almond pastries; Almond cake; Truffle salt; Truffle honey; Truffle flour; Potato flour; Rice salad; Sandwiches containing salad; Mayonnaise; Vegan mayonnaise; Imitation mayonnaise; Mayonnaise-based sauces; Mayonnaise-based spreads; Mayonnaise and ketchup-based spreads; Mayonnaise with pickles; Tomato ketchup; Ketchup [sauce]; Food condiment consisting primarily of ketchup and salsa; Bread; Crisp breads; Fresh bread; Pre-baked bread; Wholemeal bread; Filled bread rolls; Semi-baked bread; Multigrain bread; Low-salt bread; Gluten-free bread; Bread flavoured with spices; Fruited malt loaf; Gingerbread; Bread with sweet red bean; Cornflour bun bread (almojábana); Chocolate spreads for use on bread; Basil, dried; Processed herbs; Seaweed [condiment]; Dried herbs; Herbal infusions.

Class 32: Juices; Fruit juice concentrates; Aerated fruit juices; Mixed fruit juice; Fruit juice beverages; Non-alcoholic beverages containing fruit juices; Beverages consisting principally of fruit juices; Non-alcoholic sparkling fruit juice drinks; Beverages consisting of a blend of fruit and vegetable juices; Tomato juice [beverage]; Vegetable juices [beverages]; Green vegetable juice beverages; Non-alcoholic beverages containing vegetable juices; Soft drinks; Waters [beverages]; Energy drinks; Vegetable smoothies; Smoothies.

Class 43: Snack-bar services; Fast-food restaurant services; Take-away fast food services; Bar services; Juice bars; Takeout restaurant services; Mobile restaurant services; Hospitality services [food and drink]; Serving food and drinks; Restaurant services incorporating licensed bar facilities.

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

On 27/03/2019 the opponent submitted the following evidence:

 Exhibit C - Extracts from the opponent’s websites www.omv.com ‘VIVA shop & gastro’ and www.omv.at (print date: 27/03/2019) stating, among other things, that ‘(…) Our efforts to cater to people who are on their way, culminate in the creation of the VIVA line of shops and gastronomy (…). At VIVA we offer freshly made snacks and over 1,500 products of daily use, premium coffee, a gift shop, the VIVA Vinotheque and a variety of services that cater to a mobile life style. There are over 900 OMV filling stations with VIVA in nine European countries ranging from Germany to Romania’. It refers to ‘VIVA Coffee’ stating that ‘The new VIVA CAFE is available exclusively at all OMV VIVA stations. The VIVA CAFE team carefully and freshly prepares delicious speciality coffees: espresso, cappuccino, latte macchiato and many others (…)’.

 Exhibit D - Extracts of a brand awareness survey carried out by marketmind GmbH – ‘Brand & Image 2018’ in March/April 2018 and covering the territory of Austria. The sample consisted of 752 interviews of car drivers aged between 18 and 75 who refill their car at least once every two months. The method used was face to face interviews. According to the survey, when asked ‘Which names of filling station shops come to your mind spontaneously?’, 32% of respondents named ‘VIVA’. When confronted with a list of filling station shop names, 64% stated that they knew the brand ‘VIVA’ (aided awareness).

 Exhibit E - Brand awareness surveys carried out in Bulgaria, the Czech Republic, Germany, Hungary, Romania, Slovenia and Slovakia in April/May 2018 by marketmind GmbH – ‘Brand & Image 2018’, based on at least 750 samples of car drivers and consisting of face to face interviews. These surveys show ‘VIVA’ as the first or second best known brand in each of the countries (except for Hungary, where it is positioned on the 3rd place) for filling station shops, with unaided awareness (answers to the question ‘Which names of filling station shops come to your mind spontaneously?’) ranging from 26% in Germany to 58% in Romania and aided awareness (‘Now I will read to you names of filling station shop. Please tell me which of the following names you know’) ranging from 41% in the Czech Republic to 74% in Romania.

It is clear from the evidence that the earlier trade mark is generally known in the relevant market, where it enjoys a consolidated position among the leading brands, as has been attested by the market survey carried out in Austria. In particular, the evidence provides information about the position the earlier mark occupies on the market in relation to competitors’ services. The market survey fulfils the requirements of independence and trustworthiness of source as it has been conducted by an independent company. Also, a reasonably large sample of interviewees was chosen using a reliable method. Therefore, the evidence submitted is a strong indication of reputation, particularly as it shows a high degree of trade mark awareness.

On the basis of the above, the Opposition Division concludes that the evidence submitted demonstrates that the earlier trade mark has a reputation in Austria for retail services, in particular of a filling station shop, featuring food, beverages in Class 35. However, it cannot be understood from the evidence submitted that the earlier trade mark is also reputed for Class 43 services.

b) The signs

VIVA
Earlier trade mark	Contested sign

The relevant territory is Austria.

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).

It cannot be excluded that part of the public in the relevant territory may perceive the element ‘VIVA’ in the earlier mark as an expression meaning ‘long live…!’. As it has no clear and unequivocal meaning in relation to the services at issue, its distinctiveness is normal. However, the majority of the relevant public will not attribute any meaning to that element. Therefore, the distinctiveness of this element for this public is also normal.

The element ‘VITA’ of the contested sign will be understood by at least part of the relevant public as the Latin word for life. In German, words such as ‘vital’ or ‘Vitalität’ find their origin in the word ‘VITA’ and are generally understood by the public at large as relating to life. It has rather reduced distinctiveness in relation to the goods at issue as it generally evokes a positive quality attributable to the goods, in particular that the goods may have a revitalizing, energizing effect.

The element ‘ITALIAN’ (‘Italienisch’ in German) will be understood by the relevant public as ‘belonging or relating to Italy or to its people, language, or culture (information extracted from Collins Dictionary at https://www.collinsdictionary.com/dictionary/english/italian on 18/10/2019). Therefore, in relation to the goods and services at issue, its distinctiveness is reduced as it may be indicative of the origin of the products/services or their characteristics.

The element ‘BURGER’ of the contested sign will be understood as ‘a flat round mass of minced meat or vegetables, which is fried and often eaten in a bread roll’ (information extracted from Collins Dictionary at https://www.collinsdictionary.com/dictionary/english/burger_1 on 18/10/2019). Therefore, its distinctiveness in relation to part of the goods (in particular, some of the goods in Class 30) and services is reduced as it denotes the goods at issue and the kind of cuisine (for restaurant services). For the remaining goods and services, its distinctiveness is normal.

As regards the stylisation of the contested sign, it is considered that it will be perceived by consumers as having a purely decorative nature. It follows that the verbal elements of the sign are the most distinctive elements and the one to which consumers will afford the most trade mark significance.

Furthermore, it must be noted that when signs consist of both verbal and figurative components, in principle, 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)..

In the contested sign the element ‘VITA’, by virtue of its large size, colourful structure and the position within the sign, is the dominant element as it is the most eye-catching.

Visually, the signs coincide in the letters ‘VI*A’ of the only or dominant element of the signs. However, they differ in their third letters, ‘V’/’T’, and in the additional verbal elements of the contested sign, ‘ITALIAN BURGER’, which have, however, been found to be of reduced distinctiveness (as regards ‘BURGER’ only for part of the relevant goods and services). The signs also differ in the stylisation of the contested sign, which has less trade mark significance as explained above.

Based on the above, the signs are considered visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘V-I*A’, present identically in both signs. The coinciding letters constitute the majority of the only or dominant element of the signs. The pronunciation differs in the sound of their third letters, ‘V’/’T’, of ‘VIVA’ and ‘VITA’, respectively, and in the additional verbal elements of the contested sign, ‘ITALIAN BURGER’ which have no counterparts in the earlier mark and are considered of reduced distinctiveness (at least for part of the goods and services as regards the element ‘BURGER’). However, the elements ‘ITALIAN BURGER’ will foreseeably not be pronounced in particular due to their reduced size and secondary position within the sign.

Taking into account all the above, the signs are considered aurally similar to at least an average degree.

Conceptually, as the signs will be associated by part of the relevant public with a related meaning on account of the terms ‘VITA’, relating to life, and ‘VIVA’ referring to ‘long-life’, the signs are conceptually similar to at least a low degree to this extent. The contested sign has additional concepts that are of reduced distinctive character as regards part of the goods and services concerned.

Part of the public in the relevant territory will perceive the meaning of the contested sign as explained above and the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

Taking into account that the signs have been found similar in at least one aspect of the comparison, the examination of the existence of a risk of injury will proceed.

c) The ‘link’ between the signs

As seen above, the earlier mark is reputed and the signs are similar. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed by several judgments (23/10/2003, C‑408/01, Adidas, EU:C:2003:582, § 29, 31; 27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 66). It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 42):

 the degree of similarity between the signs;

 the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

 the strength of the earlier mark’s reputation;

 the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

 the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

In the present case, the marks are similar and the earlier mark enjoys reputation in Austria for retail services, in particular of a filling station shop, featuring food, beverages in Class 35.

The contested sign covers goods in Classes 29, 30 and 32 which are food and drink and services in Class 43 aimed at preparing food and drink for consumption. As regards the contested goods, they display similarities with the opponent’s services, having regard to the fact that they are complementary and that these services are generally offered in the same places as those where the goods are offered for sale. Furthermore, they are directed at the same public. The contested services are also at least similar to the opponent’s services for which reputation has been established since they all revolve around providing foodstuff and it is common nowadays for filling stations shops to also have restaurants, snack bars or cafés.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that, when encountering the contested mark, the relevant consumers will be likely to associate it with the earlier sign, that is to say, establish a mental ‘link’ between the signs. However, although a ‘link’ between the signs is a necessary condition for further assessing whether detriment or unfair advantage are likely, the existence of such a link is not sufficient, in itself, for a finding that there may be one of the forms of damage referred to in Article 8 (5) EUTMR (26/09/2012, T‑301/09, Citigate, EU:T:2012:473, § 96).

d) Risk of injury

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

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

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

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

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

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

The opponent claims that the contested sign would unfairly benefit from the attractiveness of the earlier trade mark, its reputation and its prestige, and that it would exploit, without paying any financial compensation and without being required to make efforts of his own in that regard, the marketing effort expended by the proprietor of the earlier mark. Furthermore, the use of the contested sign would detrimentally affect the distinctiveness of the earlier trade mark since it would decrease the direct association of the mark ‘VIVA’ with the opponent’s services.

In other words, the opponent claims that use of the contested trade mark would take unfair advantage of the distinctive character or the repute of the earlier trade mark and be detrimental to the distinctive character of the earlier trade mark.

Unfair advantage (free-riding)

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

The opponent bases its claim on the assertion that the contested sign would unfairly benefit from the attractiveness of the earlier trade mark built up by the opponent through the marketing effort expended by the proprietor of the earlier mark.

The concept of taking unfair advantage ‘concerns the risk that the image of the mark with a reputation or the characteristics that it projects are transferred to the goods covered by the mark applied for, with the result that the marketing of those goods is made easier by that association with the earlier mark with a reputation’ (19/06/2008, T‑93/06, Mineral Spa, EU:T:2008:215, § 40; 22/03/2007, T‑215/03, Vips, EU:T:2007:93, § 40; 30/01/2008, T‑128/06, Camelo, EU:T:2008:22, § 46).

The earlier mark has built up a significant reputation among the relevant public in Austria. It has become a strong mark. It is highly likely that the image and qualities associated with the opponent’s trade mark may be transferred to the contested mark and the goods and the services it designates. Given the reputation of the earlier mark and the connection between the goods and services at issue, it is foreseeable that the applicant may benefit from the positive image that consumers associate with the opponent’s services. As a result, by not having to undertake its own marketing efforts, the applicant would clearly exploit the reputation and prestige of the opponent’s earlier mark.

On the basis of the above, the Opposition Division concludes that the contested trade mark is likely to take unfair advantage of the distinctive character or the repute of the earlier trade mark.

Other types of injury

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

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

e) Conclusion

Considering all the above, the opposition is well founded under Article 8(5) EUTMR. Therefore, the contested trade mark must be rejected for all the contested goods and services.

Given that the opposition is entirely successful under Article 8(5) EUTMR and on the basis of the earlier Austrian trade mark registration No 279 205, it is not necessary to examine the remaining ground and the remaining earlier right on which the opposition was based.

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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

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

The Opposition Division

Helen Louise MOSBACK

Marzena MACIAK

Eva Inés PÉREZ SANTONJA

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.