CANCELLATION No 31 101 C (INVALIDITY)

Marcel Houweling, Willem van Beijerenlaan 12, 1181 DZ Amstelveen, Netherlands and Danny De Winter, Canadese Gans 3, 1423 PM Uithoorn, Netherlands (applicants), represented by NLO Shieldmark B.V., New Babylon City Offices, 2e étage, Anna van Buerenplein 21A, 2595 DA, The Hague, Netherlands (professional representative)

a g a i n s t

Kolkman Knitwear B.V., Mercatorstraat 9, 7131 PW Lichtenvoorde, Netherlands (EUTM proprietor), represented by Michiel Steenhuis, Borneostraat 10, 5215 VC, s‑Hertogenbosch, Netherlands (professional representative).

On 27/01/2020, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is partially upheld.

2. European Union trade mark No 17 931 617 is declared invalid for some of the contested goods and services, namely:

Class 18: Casual bags; handbags; backpacks; portfolio cases [briefcases]; wheeled shopping bags; sport bags; all-purpose carrying bags; handbags, purses and wallets; card cases [notecases]; business card cases; leather pouches.

Class 25: Clothing; footwear; hats; sportswear; casualwear; topcoats; leather jackets; casual jackets; lined and unlined jackets; windshirts; trench coats; blazers; gilets; shirts; sweaters; Bermuda shorts; tee-shirts and polo shirts; sweat shirts; jumpers; costumes; dinner jackets; skirt suits; bathing apparel; underwear; nightwear; bathwraps; slacks; waistcoats; ties; socks; shawls; gloves [clothing]; boxer shorts; hats, namely hats, caps [headwear], bandanas [neckerchiefs] and caps [headwear]; ladies’ clothing; belts [clothing].

Class 35: Wholesaling and retailing, and purchase and sale of clothing, footwear and headgear, belts (clothing); the bringing together, for the benefit of others, of clothing, footwear and headgear, belts (clothing), enabling customers to conveniently view and purchase those goods; consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the Internet and social media.

3. The European Union trade mark remains registered for all the remaining goods and services, namely:

Class 18: Leather and imitation leather; straps for handbags; straps for luggage; trunks and travelling bags; travelling handbags; travelling sets [leatherware]; bags [envelopes, pouches] of leather, for packaging; garment bags for travel; toiletry bags; vanity cases, not fitted; umbrellas; parasols.

Class 35: Business management; advertising; publicity and sales promotion services; mediation of advertising; dissemination of advertising and promotional materials; wholesaling and retailing, and purchase and sale of leatherware, bags, purses; import and export of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); business mediation in the purchase and sale, including online, of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); the bringing together, for the benefit of others, of leatherware, bags, purses, enabling customers to conveniently view and purchase those goods; office functions within the framework of processing online shop purchase orders; provision and rental of advertising space; data-based stock control; compilation and systematisation of information in databanks; organisation of events for commercial and advertising purposes; dissemination of advertising matter; product demonstration services in shop windows by live models; organization of fashion shows for promotional and commercial purposes; provision of models for advertising; modeling agency services; consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the internet and social media.

4. Each party bears its own costs.

REASONS

The applicants filed an application for a declaration of invalidity against all the goods and services of European Union trade mark No 17 931 617 for the figurative mark . The application is based on, inter alia, international trade mark registration No 951 921 designating, inter alia, France for the word mark ‘CIRCLE OF TRUST’. The applicants invoked Article 60(1)(a) EUTMR in connection with Article 8(1)(b) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

Case for the applicants

The applicants claimed that there was a likelihood of confusion on account of the similarity between the signs and the identity or the similarity between the goods and services, as shown in the EUIPO Similarity Tool. They argued that the public would easily recognise the word ‘CIRCLE’ in the contested sign, which shared some visual, aural and conceptual similarities with the earlier mark ‘CIRCLE OF TRUST’. They concluded that the contested sign would be perceived as a sub-brand or variation of the earlier mark (a shorter version of the earlier mark) and argued that it was common in the relevant market (clothing) to use only the first part of the original trade mark. To support their allegations, they submitted some examples showing use of the first part of their trade mark, as well as use of their mark with a figurative element (a circle), and use of the trade marks ‘TOMMY HILFIGER’ and ‘HUGO BOSS’ with only their first parts, ‘TOMMY’ and ‘HUGO’. They claimed that the earlier mark was inherently highly distinctive because it had no meaning in relation to the relevant goods.

Case for the EUTM proprietor

The EUTM proprietor claimed that although some goods in Class 25 were identical, there was no likelihood of confusion given the visual, aural and conceptual differences between the signs. It claimed that the information provided by the EUIPO Similarity Tool was of a general nature and not intended to address specific circumstances. It argued that the public would refer to the contested sign by describing its figurative element since it depicts a stylised ‘C’ or ‘O’ or a round shape interrupted (broken) by the letters ‘IRCLE’. It also pointed out that the visual perception was particularly important for the relevant goods in Class 25. Finally, the proprietor did not consider that the contested mark would be perceived as a variation of the earlier mark and argued that the applicants did not show that it is common practice for clothing brands to register and use only the first part of their original trade mark. In particular, the proprietor claimed that in B 2 777 525 the Opposition Division did not consider that the contested sign ‘CARLO BOSSI’ would be referred to as only ‘BOSSI’.

LIKELIHOOD OF CONFUSION — ARTICLE 60(1)(a) EUTMR IN CONNECTION WITH ARTICLE 8(1)(b) EUTMR

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

The application is based on more than one earlier trade mark. The Cancellation Division finds it appropriate to first examine the application in relation to the applicants’ international trade mark registration No 951 921 designating, inter alia, France.

1. The goods and services

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 goods on which the application is based are the following:

Class 25: Clothing, footwear, headgear.

The contested goods and services are the following:

Class 18: Leather and imitation leather; straps for handbags; straps for luggage; trunks and travelling bags; casual bags; handbags; travelling handbags; backpacks; portfolio cases [briefcases]; travelling sets [leatherware]; wheeled shopping bags; sport bags; all-purpose carrying bags; bags [envelopes, pouches] of leather, for packaging; garment bags for travel; handbags, purses and wallets; toiletry bags; vanity cases, not fitted; card cases [notecases]; business card cases; leather pouches; umbrellas; parasols.

Class 25: Clothing; footwear; hats; sportswear; casualwear; topcoats; leather jackets; casual jackets; lined and unlined jackets; windshirts; trench coats; blazers; gilets; shirts; sweaters; Bermuda shorts; tee-shirts and polo shirts; sweat shirts; jumpers; costumes; dinner jackets; skirt suits; bathing apparel; underwear; nightwear; bathwraps; slacks; waistcoats; ties; socks; shawls; gloves [clothing]; boxer shorts; hats, namely hats, caps [headwear], bandanas [neckerchiefs] and caps [headwear]; ladies’ clothing; belts [clothing].

Class 35: Business management; advertising; publicity and sales promotion services; mediation of advertising; dissemination of advertising and promotional materials; wholesaling and retailing, import and export, and purchase and sale of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); business mediation in the purchase and sale, including online, of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); the bringing together, for the benefit of others, of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing), enabling customers to conveniently view and purchase those goods; office functions within the framework of processing online shop purchase orders; provision and rental of advertising space; data-based stock control; compilation and systematisation of information in databanks; organisation of events for commercial and advertising purposes; dissemination of advertising matter; product demonstration services in shop windows by live models; organization of fashion shows for promotional and commercial purposes; provision of models for advertising; modeling agency services; consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the Internet and social media.

Preliminary remarks

The term ‘namely’, used in the EUTM proprietor’s list of goods and services to show the relationship of individual goods with a broader category, is exclusive and restricts the scope of protection only to the specifically listed goods.

The term ‘including’, used in EUTM proprietor’s list of goods and services, indicates that the specific services 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.

The proprietor claimed that the information provided by the Similarity Tool was very vague and was not intended to address the specific circumstances of any particular individual or entity. However, the Similarity Tool for the comparison of goods and services is a search tool to help and support examiners in assessing the similarity of goods and services. The Similarity Tool serves to harmonise practice on the assessment of similarity of goods and services and to guarantee the coherence of opposition and cancellation decisions. The Similarity Tool, which compares pairs, gives results and indicates the relevant criteria of similarity, must be followed by examiners.

Contested goods in Class 18

The applicants’ clothing in Class 25 is used to cover parts of the human body and protect them against the elements. They are also articles of fashion.

The contested casual bags; handbags; backpacks; portfolio cases [briefcases]; wheeled shopping bags; sport bags; all-purpose carrying bags; handbags, purses and wallets; card cases [notecases]; business card cases; leather pouches are related to articles of clothing in Class 25. This is because they are likely to be considered by the consumers as aesthetically complementary accessories to articles of outer clothing because they are closely coordinated with these articles and may well be distributed by the same or linked manufacturers, and it is not unusual for clothing manufacturers to directly produce and market them. Moreover, these goods can be found in the same retail outlets and they target the same consumers. Therefore, these goods are considered similar.

However, the remaining contested goods are not similar to the applicants’ goods.

The contested leather and imitation leather are raw materials. The fact that one product is used for manufacturing another (for example, leather for footwear) is not sufficient in itself for concluding that the goods are similar, as their nature, purpose, relevant public and distribution channels may be quite distinct. The abovementioned raw materials in Class 18 are intended for use in industry rather than for direct purchase by the final consumer. They are sold in different outlets, are of a different nature and serve a different purpose from clothing, headgear and footwear. Therefore, these goods are not similar.

Trunks are large packing cases or boxes that clasp shut, used as luggage or for storage; travelling bags, travelling handbags, travelling sets [leatherware], garment bags for travel are for carrying things when travelling; toiletry bags; vanity cases, not fitted are for carrying beauty products (when travelling); bags [envelopes, pouches] of leather, for packaging are used for packaging purposes; straps for handbags; straps for luggage are used to carry handbags and luggage; umbrellas are devices for protection from the weather consisting of a collapsible, usually circular, canopy mounted on a central rod and parasols are light umbrellas carried for protection from the sun. The nature of these goods is very different from that of the applicants’ goods, which encompass clothing, footwear, headgear. They serve very different purposes (storage, luggage, packaging, carrying, protection from rain/sun versus covering/protecting the human body). They do not usually have the same retail outlets and are not usually made by the same manufacturers. Moreover, the goods are neither in competition nor complementary. Therefore, they are considered not similar.

Contested goods in Class 25

Clothing; footwear are identically contained in both lists of goods.

The contested hats; hats, namely hats, caps [headwear], bandanas [neckerchiefs] and caps [headwear] are included in the broad category of the applicants’ headgear. Therefore, they are identical.

The contested sportswear; casualwear; topcoats; leather jackets; casual jackets; lined and unlined jackets; windshirts; trench coats; blazers; gilets; shirts; sweaters; Bermuda shorts; tee-shirts and polo shirts; sweat shirts; jumpers; costumes; dinner jackets; skirt suits; bathing apparel; underwear; nightwear; bathwraps; slacks; waistcoats; ties; socks; shawls; gloves [clothing]; boxer shorts; ladies’ clothing; belts [clothing] are included in the broad category of, or overlap with, the applicants’ clothing. Therefore, they are identical.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public. The same applies to wholesale services.

Therefore, the contested wholesaling and retailing, and purchase and sale of clothing, footwear and headgear, belts (clothing); the bringing together, for the benefit of others, of clothing, footwear and headgear, belts (clothing), enabling customers to conveniently view and purchase those goods; including the aforesaid services provided via electronic networks, such as the Internet and social media are similar to a low degree to the applicants’ clothing, footwear, headgear.

The contested consultancy and information regarding the aforesaid services [wholesaling and retailing, and purchase and sale of clothing, footwear and headgear, belts (clothing); the bringing together, for the benefit of others, of clothing, footwear and headgear, belts (clothing), enabling customers to conveniently view and purchase those goods] are considered included in the retail and wholesale services to which they relate. In particular, the Court has held that the objective of retail trade is the sale of goods to consumers, which includes, in addition to the legal sales transaction, all activity carried out by the trader for the purpose of encouraging the conclusion of such a transaction (07/07/2005, C‑418/02, Praktiker, EU:C:2005:425, § 34). Therefore, the abovementioned contested services are also considered similar to a low degree to the applicants’ clothing, footwear, headgear.

However, the contested wholesaling and retailing, and purchase and sale of leatherware, bags, purses; the bringing together, for the benefit of others, of leatherware, bags, purses, enabling customers to conveniently view and purchase those goods; consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the Internet and social media and the applicant’s clothing, footwear, headgear are not similar. Similarity between retail services of specific goods covered by one mark and specific goods covered by another mark can only be found where the goods involved in the retail services and the specific goods covered by the other mark are identical. This condition is not fulfilled in the present case since the goods at issue are not identical.

Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. Wholesale is the sale of commodities in quantity, usually for resale. This is not the purpose of goods. Furthermore, goods and services have different methods of use and are neither in competition nor complementary.

The contested import and export of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); business mediation in the purchase and sale, including online, of leatherware, bags, purses, clothing, footwear and headgear, belts (clothing); consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the Internet and social media are not similar to the applicants’ clothing, footwear, headgear. Import and export services are not considered to be a sales service and therefore cannot be subject to the same arguments as the comparison of goods with retail services. Import and export services relate to the movement of goods and normally require the involvement of customs authorities in both the country of import and the country of export. These services are often subject to import quotas, tariffs and trade agreements. Business mediation services are rendered to third parties and consist of assisting the parties to negotiate a settlement. Although a part of these services directly refers to the applicant’s goods (clothing, footwear, headgear), they do not have the same nature, purpose or method of use and they are not provided by the same undertakings to the same clients.

The remaining contested services are not similar to the applicants’ goods. They are aimed at supporting or helping other businesses to do or improve business and they are therefore, in principle, directed at the professional public. They belong to the following categories: advertising, business management and office functions.

Advertising services consist of providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position in the market and enabling them to acquire a competitive advantage through publicity. To fulfil this target, many different means and products might be used. These services are provided by advertising companies, which study their client’s needs, provide all the necessary information and advice for the marketing of the client’s goods and services, and create a personalised strategy for advertising them through newspapers, websites, videos, the internet, etc.

Business management services are intended to help companies manage their business by setting out the strategy and/or direction of the company. They involve activities associated with running a company, such as controlling, leading, monitoring, organising, and planning. They are usually rendered by companies specialised in this specific field such as business consultants. They gather information and provide tools and expertise to enable their customers to carry out their business or to provide businesses with the necessary support to acquire, develop and expand their market share.

Office functions are the internal day-to-day operations of an organisation, including the administration and support services in the ‘back office’. They mainly cover activities that assist in the operation of a commercial enterprise. They include activities typical of secretarial services, such as shorthand and typing, compilation of information in computer databases, invoicing, and administrative processing of purchase orders, as well as support services.

The contested services also include modeling agency services; consultancy and information regarding the aforesaid services; including the aforesaid services provided via electronic networks, such as the Internet and social media. Modeling agency services represent fashion models working in the fashion industry.

These contested services are not similar to the applicants’ goods in Class 25. The conflicting goods and services do not have the same nature or purpose, are not provided by the same entities, and are neither complementary nor in competition. In particular, advertising services are fundamentally different in nature and purpose from the manufacture of goods. The fact that some goods such as the applicant’s goods may appear in advertisements is insufficient for finding similarity. Therefore, advertising is dissimilar to the goods being advertised.

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 and services found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise. The degree of attention is considered to be average.

3. The signs

CIRCLE OF TRUST
Earlier trade mark	Contested trade mark

The relevant territory is France.

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

The earlier mark is a word mark consisting of the words ‘CIRCLE OF TRUST’.

As a whole, the expression ‘CIRCLE OF TRUST’ will not be understood by the French public and it is, therefore, distinctive to an average degree. However, a significant part of the public will understand the word ‘CIRCLE’ as referring to a round shape (a shape consisting of a curved line completely surrounding an area). The word ‘CIRCLE’ is a relatively basic English word and it is very similar to the French equivalent ‘CERCLE’.

The contested mark is a figurative mark consisting of a round shape, in bold, containing the letters ‘IRCLE’ arranged in an arc as part of the circle. Bearing in mind that the public usually endeavours to identify letters in signs to conveniently refer to them, a significant part of the public will perceive the round shape as standing for the letter ‘C’. Moreover, the fact that the letters ‘IRCLE’ are depicted in an arc in the round shape leads the public to read the sign as ‘CIRCLE’. Contrary to the proprietor’s allegations, the public will not refer to the contested sign by describing its figurative element since they will more easily refer to the sign in question by its verbal element.

The contested mark has no element that could be considered more dominant (eye-catching) than other elements.

The common element ‘CIRCLE’ does not describe or allude to the goods and services or any of their essential characteristics. Therefore, it is distinctive to an average degree.

The elements ‘OF TRUST’ of the earlier mark are meaningless from the relevant public’s perspective and, therefore, they are distinctive to an average degree.

The Cancellation Division will focus the comparison of the signs on the significant part of the French public that will perceive the word ‘CIRCLE’ in the contested sign and will attribute a meaning to that word.

A likelihood of confusion for only part of the relevant public is sufficient to reject the contested application. It is not necessary to establish that there is a likelihood of confusion for the whole of the relevant public (20/07/2017, T‑521/15, D (fig.) / D (fig.) et al., EU:T:2017:536, § 69).

Visually, the signs coincide in the letters ‘IRCLE’, which is depicted in an arc in the contested sign. The signs differ in the elements ‘OF TRUST’ of the earlier mark and in the circular shape of the contested sign. Therefore, the signs are similar to an average degree.

Aurally, as explained above, the signs will be pronounced as ‘CIRCLE OF TRUST’ and ‘CIRCLE’. They coincide in the pronunciation of the element ‘CIRCLE’, present identically in both signs. The pronunciation differs in the sound of the elements ‛OF TRUST’ of the earlier sign, which have no counterparts in the contested mark. Therefore, the signs are aurally similar to an average degree.

Conceptually, as both signs will be associated with the concept conveyed by the common element ‘CIRCLE’ and the circular shape of the contested sign, the signs are highly similar.

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

4. Distinctiveness of the earlier mark

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

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

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

It is Office practice, when an earlier mark is not descriptive (or is not otherwise non-distinctive), to consider it as having no more than a normal degree of inherent distinctiveness. Admittedly, this degree of distinctiveness can be further enhanced if appropriate evidence is submitted showing that a higher degree of distinctiveness of the earlier mark has been acquired through use or because it is highly original, unusual or unique, which however the applicants failed to do in the present case (26/03/2015, T‑581/13, Royal County of Berkshire POLO CLUB (fig.) / BEVERLEY HILLS POLO CLUB et al., EU:T:2015:192, § 49, last alternative).

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 goods and services are partly identical, partly similar to varying degrees and partly not similar. The degree of attention of the public is average.

The earlier mark has an inherent normal degree of distinctiveness.

The signs are visually and aurally similar to an average degree and conceptually highly similar.

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

Given the coinciding element ‘CIRCLE’ located at the beginning of the earlier mark and reproduced in the contested mark, albeit in a stylised manner, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods and services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

The proprietor claimed that the visual perception was particularly important for goods in Class 25. Although it is true that for these goods the visual aspect plays an important role in the global assessment of the likelihood of confusion, the aural aspect is also still relevant to the assessment of the likelihood of confusion. Not only may the importance of certain visual dissimilarities be diminished by the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks at issue, and must rely on their imperfect recollection of them, but, in addition, the consumer may be prompted to choose goods from the categories in question in response to a television advertisement, for example, or because he has heard them being spoken about, in which cases they might retain the phonetic impression of the mark in question as well as the visual aspect (04/06/2013, T‑514/11, Betwin, EU:T:2013:291, § 74). In the present case, the aural similarity is average and the conceptual similarity is high.

Considering all the above, the Cancellation Division finds that there is a likelihood of confusion on the part of the public, including a likelihood of association, and, therefore, the application is partly well founded on the basis of the applicants’ international trade mark registration No 951 921 designating France.

Pursuant to the above, the contested trade mark must be declared invalid for the goods and services found to be identical or similar to those of the earlier trade mark, including those similar to a low degree given the relevant similarities between the signs.

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

The applicants have also based their cancellation application on Benelux trade mark No 780 279 and international trade mark registration No 951 921 designating Germany, Greece and Spain, all for the word mark ‘CIRCLE OF TRUST’ for clothing, footwear, headgear in Class 25.

Since these marks/designations are identical to the one compared and cover the same scope of goods, the outcome cannot be different for goods and services for which the cancellation application has already been rejected. Therefore, there is no likelihood of confusion for those goods and services.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

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

The Cancellation Division

Julie, Marie-Charlotte HAMEL

Frédérique SULPICE

Pierluigi M. VILLANI

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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.