OPPOSITION Nо B 3 080 286

Levi Strauss & Co., Levi's Plaza 1155 Battery Street, 94111 San Francisco, United States of America (opponent), represented by Bomhard IP, S.L., C/Bilbao, 1, 5º, 03001 Alicante, Spain (professional representative)

a g a i n s t

Shenzhen Jiuchangxin Technology Co., Ltd., Three Alley 101, No. 1 Block D, Songzai Garden, Renmin South Rd, Minzhi St, Longhua New District, Shenzhen, People’s Republic of China (applicant), represented by Rolim, Mietzel, Wohlnick & Calheiros LLP, Graf-adolf-straße 14, 40212 Düsseldorf, Germany (professional representative).

On 11/12/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 080 286 is upheld for all the contested goods.

2. European Union trade mark application No 18 006 204 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 18 006 204 for the word mark ‘Levifun’. The opposition is based on, inter alia, European Union trade mark registration No 33 159 for the word ‘LEVI'S’, in relation to which the opponent invoked Article 8(1)(b) EUTMR and Article 8(5) EUTMR.

REPUTATION — ARTICLE 8(5) EUTMR

The opposition is based on more than one earlier trade mark. For reasons of procedural economy, the Opposition Division will first examine the opposition in relation to earlier European Union trade mark registration No 33 159, for which the opponent claimed repute in the European Union.

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 the European Union.

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 03/01/2019. Therefore, the opponent was required to prove that the earlier trade mark had acquired a reputation in the European Union prior to that date. The evidence must also show that the reputation was acquired for the goods for which the opponent has claimed reputation.

The opponent claimed reputation for goods in Classes 18 and 25. However, for reasons of procedural economy, the Opposition Division will first examine the evidence only with respect to the following goods for which reputation was claimed:

Class 25: Clothing.

The opposition is directed against the following goods:

Class 18: Purses; school bags; card cases [notecases]; backpacks; pocket wallets; bags for campers; travelling bags; trunks [luggage]; vanity cases, not fitted; haversacks; bags for sports; pouch baby carriers; bags; business card cases; umbrellas.

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 13/09/2019 the opponent submitted some evidence to support this claim and, in the same observations, the opponent additionally referred to the evidence already submitted on 18/09/2018 in the opposition proceedings No B 3 045 997 concerning EUTM application No 17 479 197, and requested that these materials be made accessible to the applicant. The Office forwarded the aforementioned evidence to the applicant on 04/03/2020 and invited it to submit observations by 15/05/2020. This time limit was later automatically extended until 18/05/2020 by the Executive Director’s decision No EX-20-4 of 29/04/2020 on the extension of time limits (COVID-19 extension). The applicant did not submit any observations.

The opponent requested that certain commercial data contained in the evidence be kept confidential vis-à-vis third parties, the Opposition Division will, therefore, describe the evidence only in the most general terms without divulging any such data.

The evidence consists, in particular, of the following documents.

Submitted by the opponent on 13/09/2019

 Enclosure OP-1: confidential affidavit dated 17/09/2018 of Mr T.M.O., the opponent’s assistant secretary and an employee since 1999. According to this document, the earlier mark has always been within the ‘top three’ of men’s jeans companies in France, Germany, Spain, and the UK. The document details and discusses the two following exhibits.

o Exhibit 1: table prepared by the opponent’s internal accounting department, according to which sales volumes of 501 jeans (marked also with the earlier mark ‘LEVI’S’) in France, Germany, Italy, Spain and the UK between 2013 and 2017 were very substantial, with the highest numbers in France, Germany and the UK.

o Exhibit 2: document entitled ‘Fiscal Quarter 4 2017, Global jeans market monitor. Market size and share report’ with information regarding the sales (in units and net revenues) in France, Germany, Italy, Spain and the UK between 2013 and 2017, as well as market share overviews for 2017. Bearing in mind the sensitive character of this information, this document will be described using the most general terms and no specific figures will be given.

According to this document, a very significant number of jeans bearing the Levi’s ‘501’ trade mark, with net revenues exceeding hundreds of millions of Euro, have been sold in France, Germany, Italy, Spain and the UK in the aforementioned time frame. These numbers confirm the widespread presence of the earlier mark in these countries. The overviews outlining the Levi’s market shares in France, Germany, Spain and the UK in 2017 were made by GfK/Kantar, an independent market research company, and the Levi´s brand was always in the ‘top three’ clothing manufacturers in the men’s jeans market. The opponent’s leadership in the jeans market is highlighted by the fact that its brand for ‘men’s jeans’ for 2017 represented a considerable total market share, in particular, in France and Spain. The opponent’s market share in unit sales of women's jeans was also significant in these countries.

 Enclosure OP-2: a printout from the www.statista.com website entitled ‘Net sales of Levi Strauss worldwide from 2005 to 2018’ (last update: 06/03/2019). It mentions that the opponent is one of the top apparel and accessories companies in the world, according to Deloitte's ‘Global powers of consumer products 2015’ report. It also stipulates that ‘[T]he foremost strength of the company is its brand name. Levi's is one of the oldest clothing brands and as a result of having invented the blue jean, the company enjoys an elated status in the eyes of the consumer. The brand is considered to be a status symbol for design, comfort and reliability.’

 Enclosure OP-3: a printout from the www.levistrauss.com website entitled ‘Levi’s® brand ranks ‘most trustworthy’ among young consumers’ (dated 06/07/2018). According to this document, the earlier mark was ranked No 2 as the ‘most trustworthy’ in the fashion/apparel category, based on the study by YPulse, which surveyed 80 000 consumers between the ages of 13 and 36 on ‘the brands they trust the most and consider the coolest’.

 Enclosure OP-4: three internet reports relating to brand rankings.

o A printout from the www.worldstopmost.com website, entitled ‘Top 10 best jeans brands in the world’, concerning 10 best-selling jeans brands in the world in 2018. The ‘Levi’s’ jeans is ranked 1st. According to the article:

[o]ne of the most popular fashion brands, Levi Strauss & Co is an American clothing company known worldwide for its Levi’s brand of denim jeans. It was founded in 1853, Levis Strauss is one of the most popular jeans brands worldwide. Levi’s manufactures jeans for every age and size. Starting from kids to middle-aged man. It is the top-selling jeans brand for men across the world. (…) These stunning and smart looking jeans brands are providing a variety of clothing in the world. These brands have become a symbol of identity for the consumers.

o A printout from the www.thetoptens.com website, entitled ‘Top ten brands of jeans’, listing the earlier mark as No 1 among 50 jeans brands. Some of the consumer opinions include: ‘Damn cool brand’, ‘Levi’s is basically a religion!’ ‘No Levi’s No style’ or ‘Know Levi’s Know style’.

o A printout from the www.rankingthebrands.com website, listing various rankings between 2009 and 2017, where the earlier mark is featured.

Evidence from the proceedings No B 3 045 997 and forwarded to the applicant on 04/03/2020

 Enclosure 1: the opponent’s trade mark registration for the word mark ‘501’.

 Enclosure 2: the opponent’s memorandum on the history and reputation of the opponent’s brands, in particular the ‘501’ trade mark, but also the earlier mark ‘Levi’s’, together with the following Annexes 1 to 15.

o Annexes 1 and 2: excerpts from the book The evolution of the jean, history of the 501® jeans by Lynn Downey; two timeline printouts (including the abovementioned articles) from the opponent’s website outlining the history of the ‘501’ mark; an official brochure Since 1853, in touch with the times and printouts from several websites commenting on the opponent’s anniversary series.

As noted by the opponent, the story of the ‘Levi’s 501 jeans is additionally illustrated in an eighteen-minute three-part documentary called ‘The 501® Jean: Stories of an original full documentary’, which traces the roots of the jeans back to the likes of cowboys and industrial workers. The documentary was published on YouTube on 16/03/2016 as a tribute to the ‘Levi’s’ 501 jeans and has had more than 496 070 views. The opponent continued celebrating the 501 with two additional episodes, namely ‘Japan The 501® Jean: Stories of an original Episode 4’ published on YouTube on 19/05/2016 with more than 176 130 views and ‘Music The 501 Jean: Stories of an original Episode 5’ with more than 99 590 views.

Annex 2 contains a set of documents that include, inter alia, a printout from ‘The jeans blog’ (thejeansblog.com) entitled ‘Levi’s Celebrate 100 Years With 501 Jean Documentary’ (dated 2016), according to which ‘The iconic Levi’s 501 jean was the first ever blue jean to be made, being born on 20th May 1873, over 140 years ago (…) Levi’s have presented us with a short documentary film entitled The 501® Jean: Stories of an Original. In this short film, it explores the lasting impact the Original 501 jean has had on cultural history and it gives a great inside look to the jean itself’. A Spanish blog (nodigasicono.com, dated 2016) refers to the documentary as a perfect visual tribute to the history of the iconic 501 jean whereas several other blogs (e.g. complex.com, dated 2016, long-john.nl, dated 2016) refer to the release of the episode 4 and episode 5 of the documentary. There are also other articles from German (www.interview.de), Greek (www.beatemagazine.gr, 2016) and Spanish websites (www.itfashion.com, 2016) referring to the documentary.

Annex 1 features several depictions of various jean designs with representations of the opponent’s ‘501’ trade mark and the earlier mark ‘LEVI’S’:

1890: 501® Jean, ‘Calico Mine’

1966: 501® Jean

1978: 501® Jean ‘Richie’

2008: 501® Jean

Annex 1 also features some examples of advertising and marketing materials with the earlier mark, used over the years.

The 1950s:

The 1960s:

The 1970s:

The 1980s:

The 21st century:

o Annexes 3 and 4: advertisements and promotional material. The earlier mark ‘Levi’s’, in various figurative forms, is prominently displayed in the opponent’s advertising between at least 1985 and 2009, for example:

o Annex 5: samples of anti-counterfeiting materials, recognising and educating on the opponent’s main intellectual property rights, including ‘Levi’s’, for example:

Benelux Italy

o Annexes 6, 7, 8 and 9: TV and cinema advertisements – with various TV and cinema advertisements featuring the opponent’s Levi’s 501 jeans throughout the years, in particular the following awarded ones: Bath (1986), Launderette (1985), Entrance (1987), Fridge (1988), Pick-up (1989), Taxi (1994), Clayman (1995), Washroom (1995/96), Mermaids (1996/97), etc. According to the opponent, most of these commercials have been awarded (gold or silver) at national or international advertising competitions, including Cannes, British TV advertising awards, Eurobest advertising awards, Irish advertising awards and Cinema advertising awards. The opponent submitted a detailed overview and summary of these commercials with the storyline, music details and information on awards won, as well as several press articles referring to these advertisements.

According to the magazine Campaign, 11/07/1997 (Annex 8), ‘Levi’s work in press and film has defined jeans advertising for more then a decade (…) Levi’s position as the ‘original and definite’ jean is reiterated in commercials that consistently blend music, flawless production values and clever storylines – usually incorporating a surprise element. Many of the hippest directors of the day have filmed Levi’s spots’.

An article published on www.marketingmagazine.co.uk describes Levi’s commercial campaigns as follows: ‘Since Nick Kamen’s unforgettable strip in the 1985 Launderette ad, accompanied by Marvin Gaye’s I Heard It Through the Grapevine, activity for Levi 501s has been synonymous with music’.

An article published on www.campaignlive.co.uk states ‘the launderette commercial, promoting Levi’s classic 501s, was the breakthrough’ and points out that this resulted in an increase of 800 % of Levi’s jeans sales within a year of the 501 jeans relaunch.

Another article entitled Levi’s The golden decade, details various campaigns:

.

o Annex 10: catalogues – extracts from catalogues issued between 1987 and 1996 and featuring the opponent’s earlier mark in various figurative forms, for example or . The earlier mark is used, inter alia, for the opponent’s high-class products marked with the ‘Red Tab’.

The sample catalogues cover various European countries:

a) Levi’s, Geneva affiliate catalogue, 1987,

b) Jeans Cult, Levi’s Fall 1989, Scandinavian affiliates catalogue, 1989,

c) Levi’s, Autumn-Winter 1989, U.K. affiliate catalogue, 1989,

d) This is a Pair of Levi’s - Levi’s Style Guide, Spring 1990, Greek affiliate catalogue, 1990,

e) Levi’s Jeans Cult into the Nineties, Red Tab, Spring ‘90, Benelux affiliate catalogue, 1990,

f) Levi’s, U.K. affiliate catalogue, 1990,

g) Levi’s® Style Guide, Spring 1990, Greek licensee catalogue, 1990,

h) Spring Story, 1991, German affiliate catalogue (smaller format), 1991,

i) Fall ‘91, Real Life, German affiliate catalogue, 1991,

j) 1992 Bottoms, Spring, Italian affiliate catalogue, 1992,

k) A Week in New York by Thomas Krygier 19th-26th July, U.K. affiliate catalogue, date unknown,

l) Levi’s, Summer-Fall, 96.3, Scandinavian affiliates catalogue, 1996,

m) Fall ‘96, French affiliate catalogue, 1996.

o Annex 11: online offers, from the opponent’s official online store, as well as the opponent’s online retailers, outlining the use of the earlier mark on various clothing and related goods such as jeans, T-shirts and caps.

o Annex 12: books. The earlier mark has been referred to as a clear reference to the opponent’s products in a vast number of third-party publications. The submitted excerpts of articles, chapters and even whole books dedicated to or mentioning the earlier trade mark ‘Levi’s’ confirm and illustrate the extent of its reputation.

These are, in particular, the following materials:

a) Levi Strauss History, E. Hannouille & N. Graveline, ed. Minerva, Geneva-Paris, 1992, featuring the earlier mark:

b) The Blue Revolution, Sportswear International, Zug, s.d. (1992-93), referring on p. 137 to ‘Levi’s 501’s fabulous launderette story’ and listing some of the most famous advertisements,

c) Le Jean, Toile de fond de l’histoire américaine, Régine Van Damme, Casterman (ed.), Tournai-Paris, 1991, featuring the opponent’s jeans with the earlier mark,

d) Jeans Des Heros, Lhote / Audigier, Lincoln, 1992, featuring, on p. 93, a picture of Bruce Springsteen, on the album cover ‘BORN IN THE U.S.A.’, prominently wearing a pair of Levi’s 501 jeans:

e) Chic & Toc, Le Vrai Livre Des Contrefacons, Brodbeck / Mongibeaux; 1990,

f) Identity design that works, secrets for successful identity design, Cheryl Dangel Cullen, Rockport Publishers, 2003, featuring a pair of Levi’s jeans on the cover of the book and referring to the famous brand as ‘the biggest little number in clothing’ and featuring also several large format advertisements:

g) A Cultural History of an America Icon, James Sullivan, Gotham, 2006, with the following information on pages 88-89 linked with the actor Marlon Brando and his film The Wild One: ‘(…) two years later the actor gave Levi Strauss & Co. the best unsolicited publicity a business could imagine when he and his fellow motorcyclists wore the company’s trade mark 501 throughout The Wild One’,

h) The Jeans Encyclopaedia of Legend, Past and Present, Sportswear International, 1995, with an article devoted to the opponent’s jeans model 501,

i) The Denim Bible, Jeans Encyclopaedia II, Sportswear International, 1995, containing an article related to the opponent’s mark,

j) Quintessence. The quality of having ‘IT’, Black Dog & Leventhal Publishers, 2001, stating that Levi’s jeans had been manufactured for more than 127 years.

o Annex 13: press articles and online presence – containing various references to the opponent’s brand from independent third-party sources in the territory of the European Union (EU). The opponent also provides the necessary partial translations in English.

In particular, the following documents have been provided.

a) Levi’s contre-attaque sur tous les fronts (Levis counter-attacks on all sides) by Clotilde Briard, published on 19/01/2005 at Les Echos, according to which ‘the brand develops a new upscale range, invests in its mythic jeans, the Levi’s 501, refines its offer for women and its distribution.’

b) Levi’s Coco, published on 01/04/2009 on Tendances de Mode (www.tendances-de-mode.com), where the opponent’s brand is referred to as ‘an internationally known trade mark’. The article states: ‘The 501 is on any trendy thing the world has, from the rockers to Marlon Brando via Andy Warhol: Levi’s is at the top of its glory’.

c) Levis, le jeans de toutes les générations à l’histoire légendaire, published on Glamour France, www.glamourparis.com (printout date: 01/09/2011), which mentions ‘It’s emblematic piece of clothing, the Levi’s 501, is worn by all generations.’

d) Levi’s 501 – Die älteste, die bekannteste und die meistgetragene Jeans der Welt (Levi’s 501 – the oldest, the most well-known and the most worn jeans in the world), published on www.bebasic.ch.

e) Levi’s, published on www.keymarks.be, on 01/03/2010, where Levi’s 501 jeans are referred to as ‘legendary’.

f) Levi’s, published on www.elle.be, on 25/05/2009, with the following reference to the opponent’s goods: ‘[…] you can find all models and all cuts, from the classical to the more trendy: slim, bootcut, superskinny, slim fit, straight, and, of course, the unsurpassed 501.’

g) Freund 501 (Friend 501), by Elna Untermöhle, published in Spezial, in July 1999, referring to the ‘501 iconic jeans’.

h) Kult und Klassiker: Die Levis 501, published on www.der-mann.net on 08/06/2011, stating the following: ‘Nowadays the Levi’s 501 is still a golden oldie among jeans trousers and is a stylish must-have for every jeans-wardrobe.’

i) Eine Hose für den Goldrausch, published on Focus Online (www.focus.de), on 19/03/2007, refers to ‘the well-known model Levi’s 501’. The article states: ‘The original version of these trousers, the Levi’s 501, is a blockbuster since 120 years. […] To date, Levi Strauss & Company is one of the largest jeans manufacturers and the model Levi’s 501 probably the most famous and most worn jeans in the world.’

j) Levis 501 – die klassische gerade Kultjeans (Levis 501 – the classic straight iconic jeans), published on www.jeans-one.de, reading the following: ‘The original! The Levi’s 501 is not only a trouser but a legend which adapted to the challenges of the past centuries in a unique way […]. Even though the Levi’s 501 went through different temporary fashions, in the matter of styling and trend it persisted undefeated.’

k) Levi’s – Blue Jeans mit Kultstatus, published on www.style-news.org, on 03/12/2010, with the following reference: ‘The Levi’s 501 is one of the most widespread jeans models worldwide. The company owes this surely to style icons such as Elvis Presley, James Dean and Marlon Brando, which often and willingly wore these practical trousers and not insignificantly contributed to the iconic status of blue jeans.’

l) Levi’s, published on www.fashionlinesite.com (printout date: 22/08/2011), with a reference to the jeans model as ‘Three digits – a revolution’ and stating the following: ‘Levi’s 501 is one of the most famous and most worn jeans in the world (…) Unique commercials, films, concerts would not be recognisable without this blue trouser.’

m) Knackpo für alle, by Angelika Slavik, published on Süddeutsche Zeitung, on 29/08/2011, with a reference to the jeans as ‘the 501 jeans, the most well-known jeans in the world’.

n) Die Levi’s 501, published on www.modeguides.de, on 20/04/2012 with the following reference: ‘There is certainly no man who does not know the Levi’s 501.’

o) Stars who wear Levi’s 501s, published in The Telegraph (www.telegraph.co.uk), on 27/04/2013, with a reference to the ‘iconic blue jeans’.

p) How much are your vintage Levi’s worth? Rare denim jeans from the Fifties are selling for up to USD 8.000 on eBay, published on www.dailymail.co.uk, on 21/05/2013, where a picture of a pair of Levi’s jeans listed on eBay is illustrated together with a reference to its price for collectors.

q) Das demokratischste aller Kleidungsstücke, by Franziska Klün, published on Die Zeit Online, on 16/07/2013, and devoted to the opponent’s 501 jeans.

r) Levi’s 501 jean interpretations, published in Fashion United, on 22/07/2013, where the article states the following: ‘Ask anyone in fashion which items would appear in their top ten list of iconic pieces, and the Levi’s 501 jean would appear somewhere at the top of that list. Now celebrating its 140 year, Levi’s have released 501 copies of a special edition book to celebrate the iconic 501 jeans.’

s) Levi’s 501: pourquoi ce jean ne se démodera jamais, ELLE, 20/03/2016. The online edition of Elle lifestyle magazine explains, according to the opponent, why the legendary Levi’s 501 never goes out of style and refers to the red label as the American dream.

t) The genius of Levi's 501s: From Winona to the wedgie, why 501s will be eternally cool, GLAMOUR, 16/03/2016. The online edition of the Glamour magazine describes Levis’s 501 as a consistent best-seller. The article mentions that the opponent’s jeans ‘have been worn by some of the world's most charismatic faces – from Marilyn Monroe and Marlon Brando to Alexa Chung and Rihanna.’

u) La historia de Levi´s ,143 años a la cabeza de los jeans, Infocif.es, 24/05/2016.

v) Levi’s ® celebra su aniversario por todo lo alto con el 501® Day, vein.es, 19/05/2017.

w) Levi's 501, historia de un ícono, La Gaceta, 31/05/2017.

x) Levi´s fête l´anniversaire du jean iconique avec le 501´s Day, GRAZIA, 19/05/2017.

y) Levi’s 501: Tout Ce Quil Faut Savoir Pour Bien Le Choisir, printed on 08/06/2018.

z) Why George Clooney wears James Dean´s pants, published on adweek.com, on 06/10/2014. The article mentions that ‘After 141 years, Levi´s 501s are still the coolest jeans in America’ and presents ‘famous 501 Fans’ including, inter alia, John Lennon, Brad Pitt, Johnny Depp, Steve Jobs, Marilyn Monroe and Steve McQueen.’

 Annexes 14: national decisions acknowledging the reputation of the ‘501’ mark – extracts from decisions of national courts acknowledging the highly distinctive character and the reputation of the trade mark ‘501’, in particular made by the relevant Belgian, French and Spanish bodies. The decisions and their originals are accompanied by relevant translations into English:

o decision of Tribunal of Commerce of Brussels of 03/10/2000, 4698/99, Levi Strauss & Co / S.C. Anatolian Delivery Services, where the Tribunal stated that ‘the word mark 501 has acquired a significant reputation over several years […]’;

o decision of Court of Brussels of 07/06/20102, 2000/AR/254, Levi Strauss & Co / Casucci Spa, where the Court stated ‘given that these signs [501 and 901] have acquired a particular distinctive character due to their intensive use by LEVI STRAUSS’;

o judgment of the Tribunal of First instance of Bobigny of 22/02/2000, 99/04386, Levi Strauss & Co / Societe GMS International, where the Tribunal states that the Levi Strauss ‘marks are reputed’;

o judgment of the Tribunal of First instance of Paris of 20/03/2009, 08/13440, Levi Strauss & Co / SARL Le temps de la mode, with a reference that ‘the infringing right wanted to illegally use the very important reputation of its trade marks [Levi’s Strauss]’;

o judgment of the Tribunal of First instance of Paris of 17/06/2008, 06/14339, Levi Strauss & Co / SARL Vise;

o decision of Appeal Court of Angers Commercial Chamber of 15/04/2003, 01/00404, Levi Strauss & Co / SA Busson and Blue light, where it was considered that ‘the infringing right [Blue Light 701] is benefiting from Levi Strauss continental’s efforts and the reputation of it’s goods’;

o judgment of the Tribunal of First instance of Paris of 29/04/1998, 97/3295, Levi Strauss & Co / Moda Italia, with a reference that ‘the use of the infringing right would result in a weakening of its [Levi’s Strauss] reputed 501 mark’;

o judgment of the Tribunal of First instance of Paris of 04/03/1998, 97/6010, Levi Strauss & Co / Mr Trad Imad (proprietor of Jean’s 001);

o judgment of the Superior Court of Justice of Palma de Mallorca of 30/12/2003, 1048/2003, Levi Strauss & Co / Abdelaziz Mohamed Mohamed, stating that the earlier mark is well-known.

It is clear from the abovementioned evidence that the opponent’s earlier mark ‘LEVI’S’ has been subject to a very long-standing and intensive worldwide use, at the very least, in relation to jeans. The majority of the evidence relating to the European Union concerns France, Germany and the United Kingdom, where the use was significant both geographically and quantitatively (see in particular enclosure OP-1 with the enclosed exhibits 1 and 2). Although the consumer market for jeans is a highly competitive one, with some well-established brands and numerous new emerging brands every year, the opponent managed to maintain a very high position (in the ‘top three’) amongst clothing manufacturers on the men’s jeans market and a high overall position in the market of jeans, as such.

While some pieces of evidence are fairly outdated, they clearly indicate a very long period of use of the earlier mark. The evidence submitted by the opponent is very extensive and diverse, originating mostly from various independent sources, and it confirms, beyond any doubt, that the earlier mark ‘LEVI’S’ is generally known in the relevant market, at the very least, in France, Germany and the United Kingdom, where it enjoys a consolidated position among the leading brands.

The data referring to the sales and net revenues confirm that the use of the earlier mark in the abovementioned territories is incontestably widespread. Furthermore, the advertisements, many of which received awards in national or international competitions and were praised by both the public and experts (Annexes 6-9), and numerous references to the earlier mark in independent third-party materials, such as books, paper and online editions of well-known magazines (in particular Annexes 1-2 and 12-13), be it general or specialised, give a very solid testimony as to the opponent’s investments and its promotional communication, as well as to its consistent presence in the public arena throughout the years since the establishment of the opponent’s company and of the earlier brand ‘LEVI’S’, respectively.

The material filed by the opponent unequivocally confirms the huge success of the opponent, which, for many years and with the investment of immense funds, has successfully developed its ‘LEVI’S’ brand, which became one of the most widely recognised and most valuable brands, not only in the abovementioned territories of the EU, but also beyond.

The numerous examples of the earlier mark being worn by some of the world’s most charismatic personalities, such as Marilyn Monroe, Marlon Brando, Elvis Presley, James Dean or Rihanna (e.g. Annex 13 – Levi’s – Blue Jeans mit Kultstatus, published on www.style-news.org, on 03/12/2010 and The genius of Levi's 501s: From Winona to the wedgie, why 501s will be eternally cool, GLAMOUR, 16/03/2016), recurring appearances in pop culture, such as in movies (Annex 12 – A cultural History of an America Icon, James Sullivan, Gotham, 2006) or on the cover of Bruce Springsteen’s cult album ‘BORN IN THE U.S.A.’ (Annex 12 – Jeans Des Heros, Lhote / Audigier, Lincoln, 1992), as well as a constant presence in advertising and public arena, all confirm the earlier mark’s iconic status in relation to jeans or, indeed, as synonymic of ‘the oldest, the most well-known and the most worn jeans in the world’ (Annex 13 – Levi’s 501 – Die älteste, die bekannteste und die meistgetragene Jeans der Welt or Eine Hose für den Goldrausch, published on Focus Online). This is clearly confirmed by a number of press articles (Annex 13), where the opponent’s mark is referred to as ‘iconic’, ‘legendary’, ‘mythic’, ‘worn by all generations’ or ‘golden oldie among jeans trousers and a  stylish must-have for every jeans-wardrobe’.

The opponent’s efforts regarding advertising and promotion of the earlier mark (Annexes 1-4 and 6-9), as well as involving large financial investments, undoubtedly contribute to the state of the opponent’s success and the long presence of the earlier mark in the relevant territory. In this regard, the Opposition Division notes that the longer the mark has been used in the market, the larger will be the number of consumers that are likely to have encountered it, and the more likely it is that such consumers will have encountered the mark more than once. In addition, the opponent also provided samples of successful enforcements before national judicial or administrative authorities (Annex 12), as well as examples of actions directed against acts of counterfeiting (Annex 5), showing that the reputation of the jeans designated with the opponent’s ‘Levi’s’ brand, has been repeatedly recognised and protected against infringing acts throughout many years.

In the present case, the evidence in its totality, in particular, the sales figures, marketing expenditure, market share and numerous mentions of the earlier mark in the press demonstrated in the independent sources (listed above), unequivocally shows that the opponent’s earlier trade mark ‘LEVI’S’ enjoys a high degree of recognition among the relevant public in various Members States of the European Union. Although the evidence does not refer specifically to all particular countries of the European Union, the Opposition Division acknowledges, on the basis of the overview of the evidence, that reputation has been proven, at the very least, in France, Germany and the United Kingdom. According to case-law, an EU trade mark must be known by a significant part of the public concerned for the goods or services covered by that trade mark, in a substantial part of the territory of the European Community (06/10/2009, C‑301/07, Pago, EU:C:2009:611).

Therefore, it is concluded that the earlier mark enjoyed, before the date of filing of the contested application (i.e. 03/01/2019), a high degree of reputation for jeans in Class 25, namely a subcategory of the opponent’s clothing, for which this earlier mark is registered.

b) The signs

LEVI'S	Levifun
Earlier trade mark	Contested sign

The relevant territory is the European Union.

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

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, detriment or unfair advantage to reputation or distinctive character established for only part of the relevant public of the EU is sufficient to reject the contested application. As the earlier mark’s reputation has been established in, inter alia, the United Kingdom, the Opposition Division finds it appropriate to focus the comparison of the signs on the public in this territory.

Both signs are word marks. The protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics that the mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43). Therefore, in principle, it is irrelevant whether word marks are in upper- or lower-case letters. For the same reasons, word marks have no element(s) that could be considered more dominant than other elements.

The earlier mark’s element ‘LEVI’ will be understood by at least a substantial part of the relevant public as either a male forename or as a surname (information extracted from Forebears on 25/11/2020 at forebears.io/forenames/levi and forebears.io/surnames/levi). As this meaning is not descriptive, allusive or otherwise weak in relation to the opponent’s jeans, its inherent distinctiveness is average. The Opposition Division will limit the examination to this part of the relevant public.

‘LEVI’ is followed by an apostrophe and the letter ‘S’, which indicates possession, for example ‘Harry’s book’; ‘the boys’ coats’ (information extracted from Lexico Dictionary on 25/11/2020 at www.lexico.com/en/definition/apostrophe#apostrophe-2). Therefore, the earlier mark ‘LEVI’S’ will be seen as an indication that the goods originate from a person named ‘Levi’ or an establishment owned or run by that person. Consequently, the ending ‘’S’ will be seen as subordinate to the word ‘LEVI’.

Although the contested sign, ‘Levifun’, is composed of one verbal element, the public is likely to break it down into two components, ‘Levi’ and ‘fun’. According to case-law, the relevant consumer, when perceiving a word, will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T‑146/06, Aturion, EU:T:2008:33, § 58). This is justified by the fact that consumers naturally look for a meaning when perceiving a word mark.

As already established above, ‘Levi’ will be seen as either a male forename or as a surname. As this meaning is neither descriptive, allusive nor otherwise weak in relation to the contested goods, its inherent distinctiveness is average.

The contested sign’s verbal component ‘fun’ will mostly likely be seen as a noun, referring to ‘enjoyment, amusement, or light-hearted pleasure’ (information extracted from Lexico Dictionary on 25/11/2020 at www.lexico.com/definition/fun). ‘Fun’ is a common advertising term that prompts a purchase by means of its laudatory character (07/12/2017, R 847/2017‑1, fit+fun, § 17). The use of the word ‘fun’ is also common in the context of the contested goods in Class 18. Given that it conveys a largely laudatory message, it must be seen as less distinctive than the coinciding word ‘Levi’.

Visually and aurally, the signs coincide identically in the word ‘LEVI’ (and its sound), located (and audible) at their beginnings. The earlier mark differs from the contested sign in an apostrophe and the letter ‘S’ located at its end, which, however, are subordinate to the coinciding word ‘LEVI’ and will attract the attention of the relevant public less. The presence of an apostrophe does not introduce any perceivable aural difference. The contested sign differs from the earlier mark in its second component ‘FUN’ (and its sound), which, however, is less distinctive than the coinciding word.

Consumers normally focus their attention at the beginning of the signs (21/05/2015, T‑420/14, Wine in Black / NOVAL BLACK, EU:T:2015:312, § 25). This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. The same rule applies also to the aural comparison (04/10/2017, T‑411/15, GAPPOL (fig.) / GAP et al., EU:T:2017:689, § 79). Therefore, visually and aurally, the coinciding beginning ‘LEVI’ will attract more attention of the relevant public than the differing and less distinctive ending ‘FUN’ of the contested sign (12/07/2019, T‑467/18, AUDIMAS (fig.) / Audi, EU:T:2019:513, § 42, 50-60), and earlier mark’s apostrophe and the letter ‘S’, which are shorter and have subordinate functions.

Consequently, the signs are visually and aurally similar to at least an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As both signs will be associated with an identical name (LEVI), regardless of whether seen as a forename or surname, and despite the presence of additional verbal elements, the signs are conceptually similar to at least an average degree.

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 link and 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.

The establishment of such a link, while triggered by similarity (or identity) between the signs, requires that the relevant sections of the public for each of the goods and services covered by the trade marks in dispute are the same or overlap to some extent.

According to the Court of Justice of the European Union,

It is therefore conceivable that the relevant section of the public as regards the goods or services for which the earlier mark was registered is completely distinct from the relevant section of the public as regards the goods or services for which the later mark was registered and that the earlier mark, although it has a reputation, is not known to the public targeted by the later mark. In such a case, the public targeted by each of the two marks may never be confronted with the other mark, so that it will not establish any link between those marks.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 48.)

The Court of Justice has also noted,

… that certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which those marks were registered. In such a case, it is possible that the relevant section of the public as regards the goods or services for which the later mark is registered will make a connection between the conflicting marks, even though that public is wholly distinct from the relevant section of the public as regards goods or services for which the earlier mark was registered.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 51 and 52.)

The degree of similarity between the signs

The signs are visually, aurally and conceptually similar to at least an average degree from the perspective of the public taken for the purpose of this comparison.

The degree of the earlier mark’s distinctive character

The earlier trade mark has no meaning in relation to the opponent’s jeans in Class 25 and, therefore, its inherent distinctiveness is normal.

The strength of the earlier mark’s reputation

The earlier mark has a high degree of reputation for jeans in Class 25.

The nature of the goods and the relevant public

The contested goods in Class 18 are various fashion accessories, such as bags, card cases, wallets, purses, and also luggage, vanity cases, pouch baby carriers and umbrellas.

Some of these goods are similar or similar to a low degree to the opponent’s jeans in Class 25. For example, the contested bags are considered accessories that complement articles of outer clothing, and as such they may be distributed by the same or linked manufacturers; it is not unusual for manufacturers of clothing to directly produce and market related goods such as bags. Moreover, these goods can be found in the same retail outlets. Therefore, the contested bags are similar to the opponent’s jeans.

In this regard, it should be recalled that Article 8(5) EUTMR applies also when the goods are identical or similar (09/01/2003, C‑292/00, Davidoff, EU:C:2003:9). Although some other contested goods, such as umbrellas or trunks [luggage], are dissimilar to the opponent’s jeans in Class 25, a certain degree of proximity between them cannot be denied. In addition, these goods may be considered as fashion accessories in the broad sense of this term.

It is a well-known fact that fashion designers and manufacturers of various fashion accessories often work together to build modern and new looks. Nowadays, a certain aesthetic coordination between the goods in Class 18 and items of clothing in Class 25 is inevitable. According to case-law, the connection between fashion accessories in Class 18 and clothing in Class 25 is very apparent (20/06/2018, T‑657/17, HPC POLO / POLO et al., EU:T:2018:358, § 40). Some of these goods may be produced by the same industry or at least they belong to very closely related economic sectors. Indeed, in the Opposition Division’s opinion, all the contested goods in Class 18 may be a natural brand extension for the opponent, the world-famous manufacturer of clothing.

In addition, the public for all these goods: the general public, overlaps substantially. The degree of attention of the public may vary from average to high, depending on the frequency of purchase and price of these goods. Moreover, at least some of these goods can be found in the same retail outlets.

Conclusion

Although some of the contested goods in Class 18 are dissimilar, while others show some (at least low) degree of similarity to the opponent’s jeans in Class 25, all these goods belong to the same or at least to very closely related market sectors, or they are important (even if for aesthetic reasons) for each other’s use, and may be purchased by the same consumers. The opponent’s mark enjoys a high degree of reputation for jeans and the similarity between the signs in question is at least average on all the respective levels of comparison.

Furthermore, the relevant goods in Classes 18 and 25 belong to market sectors in which it is common to create sub-brands, namely variations of the main brand that include different motifs. As it is clear from the evidence, the earlier mark ‘LEVI’S’ is used as the house mark and the opponent’s goods are additionally designated by various sub-brands, such as ‘501’. Therefore, at least in relation to the goods that show any similarity to the opponent’s jeans, the consumers could be led to believe that the contested sign is 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 (18/02/2004, T‑10/03, Conforflex, EU:T:2004:46, § 61; 23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). For example, consumers could be led to believe that the owner of the earlier trade mark, ‘LEVI’S’, has launched a new line of similar goods in Class 18, designated with the distinctive element ‘Levi’, and made for enjoyment (a ‘fun line’). Indeed, according to case-law, a possible existence of a likelihood of confusion on the part of the public is one of the factors to be taken into account in the assessment of the link (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 42).

Taking into account and weighing up all the relevant factors, and in particular the strength of the earlier mark’s reputation in the sector of clothing, it is reasonable to assume that average consumers of the contested goods, who know the earlier reputed ‘LEVI’S’ trade mark and who encounter the contested sign ‘Levifun’, will instantly recall the earlier mark, 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). Consequently, the Opposition Division will now analyse whether there is a risk of injury under Article 8(5) EUTMR.

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 submit evidence or at least put forward a coherent line of argument demonstrating what the detriment or unfair advantage would be 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 use of the contested trade mark would, inter alia, take unfair advantage of the reputation 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 argues that it is very likely that a consumer would attribute the goodwill acquired by the opponent through decades of brand promotion, including serious advertising, and through consistent quality and innovation over many years to the goods offered under the contested sign. According to the opponent, there is an advantage if the reputation of the first mark could be used as a vehicle for facilitating the sale of the goods under the junior mark. This advantage is unfair if it is based on the opponent’s fame, rather than on the applicant’s own marketing efforts.

In the case in question, the opponent argues that there is a clear risk that the goodwill of the LEVI’S trade mark, its reputation and high quality image would be transferred to the goods covered by the contested sign, with the result that the marketing of those goods would be made easier by the association with the earlier trade mark with a reputation. It would amount to an unfair advantage in the sense that ‘some sort of boost’ would be given to the contested sign as a result of its being linked, in the minds of the consumers, to the opponent’s ‘LEVI’S’ brand.

According to the Court of Justice of the European Union

… as regards injury consisting of unfair advantage taken of the distinctive character or the repute of the earlier mark, in so far as what is prohibited is the drawing of benefit from that mark by the proprietor of the later mark, the existence of such injury must be assessed by reference to average consumers of the goods or services for which the later mark is registered, who are reasonably well informed and reasonably observant and circumspect.

(27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 36.)

Taking unfair advantage does not necessarily require a deliberate intention to exploit the goodwill attached to a third-party’s trade 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).

To determine whether the use of a sign takes unfair advantage of the distinctive character or the repute of the mark, it is necessary to undertake an overall assessment, which takes into account all the factors relevant to the circumstances of the case (10/05/2007, T‑47/06, Nasdaq, EU:T:2007:131, § 53; 12/03/2009, C‑320/07 P, Nasdaq, EU:C:2009:146; 23/10/2003, C‑408/01, Adidas, EU:C:2003:582, § 29, 30, 38; 27/11/2008, C‑252/07, Intel, EU:C:2008:655, § 57, 58, 66; 24/03/2011, C‑552/09 P, TiMiKinderjoghurt, EU:C:2011:177, § 53).

The earlier trade mark has built up a high degree of goodwill and reputation among the relevant public in the European Union. As can be seen from the evidence, the opponent has been using the earlier ‘LEVI’S’ trade mark for jeans and actively promoting it for many decades. As a result, as has been attested by various items of evidence, the earlier trade mark is associated by the relevant public with an image of high quality, style and uniqueness, resulting in its undisputed iconic status among the public. Taking into account the earlier mark’s high reputation for jeans, and also the fact that it is inherently distinctive for the relevant goods and that the signs are similar to at least an average degree, it is concluded that consumers of the contested goods will make a connection between the marks – an association that will be of commercial benefit to the applicant. Indeed, as claimed by the opponent, it is highly likely that the image of high quality would be transferred to the goods covered by the contested sign and that the applicant would unduly benefit from the opponent’s fame and attractiveness, without making its own marketing efforts.

Consequently, the Opposition Division concludes that the contested trade mark is likely to take unfair advantage of the reputation of the earlier trade mark.

Other types of injury

The opponent also argued 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. The Opposition Division has already concluded that the contested trade mark would take unfair advantage of the 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 on the basis of the opponent’s European Union trade mark registration No 33 159. Therefore, the contested trade mark must be rejected protection in respect of the European Union for all the contested goods.

As the earlier right mentioned above leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

Since the opposition is fully successful on the basis of the ground of Article 8(5) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(1)(b) EUTMR. Likewise, there is no need to analyse the evidence of reputation in relation to other territories and/or other goods on which the opponent relies, since this would not alter the final outcome.

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

Liliya YORDANOVA

Jakub MROZOWSKI

Reiner SARAPOGLU

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.