CANCELLATION No C 44 046 (INVALIDITY)

Xiaomi Inc., Floor 13, Rainbow City Shopping Mall II of China Resources No. 68, Qinghe Middle Street, Haidian District, 100028 Beijing, China (applicant), represented by Lane IP Limited, The Forum, St Paul’s, 33 Gutter Lane, EC2V 8AS London, United Kingdom (professional representative)

a g a i n s t

Esonline, Calle Isabel Colbrand 10, OFI. 118, 28050 Madrid, Spain (EUTM proprietor).

On 13/04/2021, the Cancellation Division takes the following

DECISION

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

2. European Union trade mark No 18 044 609 is declared invalid in its entirety.

3. The EUTM proprietor bears the costs, fixed at EUR 1 080.

REASONS

The applicant filed an application for a declaration of invalidity against European Union trade mark No 18 044 609 (figurative mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely against all the goods in Class 9. The application is based on international trade mark registration No 1 386 657 designating Spain, Austria, Croatia, Italy, Romania, Lithuania, Hungary, Ireland, Latvia, Sweden, Greece, Bulgaria, Benelux, Cyprus, Slovenia, Slovakia, Czech Republic, Germany, United Kingdom, Poland, Denmark, Portugal, Estonia, Finland, France; non-registered trade mark used in the course of trade in all the Member States of the EU at the time of the application; and a copyright claimed for all the Member States of the EU at the time of the application.

The applicant invoked Article 59(1)(b) EUTMR, Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) and Article 8(5) EUTMR, Article 60(1)(c) EUTMR in conjunction with Article 8(4) EUTMR and Article 60(2)(c) EUTMR.

Preliminary remark

On 01/02/2020, the United Kingdom (UK) withdrew from the EU subject to a transition period until 31/12/2020. During this transition period EU law remained applicable in the UK. As from 01/01/2021, UK rights ceased ex lege to be earlier rights protected ‘in a Member State’ for the purposes of proceedings based on relative grounds. The conditions for applying Article 59(1)(b) EUTMR, Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) and Article 8(5) EUTMR, Article 60(1)(c) EUTMR in conjunction with Article 8(4) EUTMR, Article 60(2)(c) EUTMR, worded in the present tense, must also be fulfilled at the time of taking the decision.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argued that the EUTM proprietor filed the contested mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of the applicant, or with the intention of obtaining an exclusive right for purposes other than those falling within the functions of a trade mark including for the purpose of indicating origin. The EUTM proprietor knew, or must reasonably have known, at the time of filing, about the applicant’s activities and interest in the ‘XIAOMI’, ‘XIAOMI YOUPIN’, Chinese character versions of the marks as well as the identical logo. The EUTM proprietor’s intention in making the application was dishonest or otherwise not in accordance with honest practices and was to appropriate the marks and the reputation of the applicant for itself, to try and prevent Xiaomi Inc. from continuing to use/register their marks in the EU and/or to try and secure a benefit or gain for itself at the applicant’s direct or indirect expense. Furthermore, the EUTM proprietor filed the application for the contested mark without any intention of using the trade mark in relation to the goods covered by the registration but with the intention either of undermining, in a manner inconsistent with honest practices, the applicant’s interests or of obtaining an exclusive right for purposes other than those falling within the functions of a trade mark.

In support of its arguments, the applicant submitted the following documents:

 Annex 1: printout from WIPO’s Madrid Monitor regarding international trade mark registration No 1 386 657 in Class 9.

 Annex 2: the Whois database record for the domain name www.xiaomiyoupin.com. This domain was created on 13/12/2016.

 Annexes 3 and 4: a list and extracts of the applicant’s trade marks ‘XIAOMI YOUPIN’ and 小米有品 (Chinese character equivalent marks).

 Annex 5: Google search on ‘小米有品’, ‘小米’, ‘XIAOMI YOUPIN’, ‘YOUPIN’ and ‘XIAOMI’ showing that the EUTM proprietor does not appear in the results.

 Annex 6: printouts from the website https://digisanse.com.

 Annex 7: a screenshot from the homepage of the website https://digisanse.com from the internet archive, the Wayback Machine, demonstrating the EUTM proprietor’s knowledge of the applicant.

 Annex 8: a printout from ‘MI Europe (DHL 24hrs) - Amazon.es store’ which lists the company name Esonline SL and contains reviews at the bottom of the page, pre-dating the filing of the contested mark with comments such as ‘Unbeatable price quality, my next mobile was also a Xiaomi’ on 19/09/2018.

 Annex 9: evidence that ‘小米有品’ translates to ‘XIAOMI YOUPIN’ in Danish, English, French, German, Italian, Polish, Portuguese, Romanian and Spanish.

 Annex 10: printouts from the applicant’s website that indicate their general provisions (including printouts from websites such as www.mi.com/uk, www.mi.com/es, www.mi.com/it and www.mi.com/fr that demonstrate that the applicant targets EU consumers and makes extensive use of the sign ‘XIAOMI’ across the EU).

 Annex 11: printouts from the applicant’s website indicating that there are a number of physical Xiaomi stores located throughout the EU, including in London (UK), Paris (FR), Rome (IT), Milan (IT), Venezia (IT), Valencia (ES), Madrid (ES), Barcelona (ES), Murcia (ES), Tarragona (ES), Pamplona (ES), Almería (ES), Sevilla (ES), Bilbao (ES), Girona (ES), Valladolid (ES), Málaga (ES), Girona (ES), Guadalajara (ES), Zaragoza (ES), Warsaw (PL), Poznan (PL) and Krakow (PL) amongst others.

 Annex 12: internet extracts showing that the applicant operates physical stores specifically under the logo in China.

 Annex 13: printouts from the applicant’s website showing use of the sign ‘XIAOMI’ in relation to goods such as smartphones, laptops, tablet computers, smart wristbands, activity trackers, sensors, power banks, television set top boxes, vacuum cleaners, washing machines and electronic accessories for these goods.

 Annex 14: internet extracts showing the applicant’s online Xiaomi YouPin store, which lists for sale various goods under the 小米有品 mark, including items falling within Class 9, such as heads-up-display navigation devices, diving equipment, security devices (such as electronic door locks) and photographic devices.

 Annex 15: an internet extract showing that Xiaomi YouPin products are available for purchase from third party stores in the EU, such as electronic rulers, GPS alarms, water dispensers, laptop backpacks and hair trimmers.

 Annex 16: an extract from IDC Consulting, indicating that the applicant was the fourth largest smartphone manufacturer in the world in 2018.

 Annexes 17 and 18: extracts from the market share analysis website Statcounter confirming that the applicant was the fourth largest smartphone manufacturer in Europe with a market share of 4.92 % in April 2019 and 7.61 % in April 2020.

 Annex 19: evidence of the applicant’s attendance at the Mobile World Congress, in Barcelona, Spain in 2016 and at the CeBIT trade fair in Germany in 2015.

 Annex 20: extracts from the independent app analytics company App Annie showing that the applicant has a number of software products. These extracts provide details on the apps, their functions, when they were first released, consumer rating and download history within the EU.

 Annexes 21 and 22: examples of awards delivered to the applicant’s XIAOMI branded products.

 Annex 23: articles from various EU media outlets referring to the applicant’s XIAOMI branded products.

 Annex 24: articles detailing the use of the logo , the YouPin online store and the success of the YouPin brand.

 Annex 25: posts made by the applicant for promoting its goods.

 Annexes 26 and 27: internet extracts showing that the applicant has over 28 million fans on its Weibo page, which promotes products under the ‘XIAOMI’ and ‘XIAOMI YouPin’ logo and Wayback Machine extracts dated 29/12/2018.

 Annex 28: screenshots from videos published on YouTube (which also show viewing numbers) that promote XIAOMI products.

 Annex 29: examples of video reviews of XIAOMI products from YouTube users.

 Annex 30: the applicant’s 2019 annual report showing significant amounts of global revenue through the sale of its products.

 Annex 31: the annual results announcement for 2018. The financial report indicates smartphone shipments for Western Europe growing 415.2 % year-on-year and XIAOMI ranking fourth in terms of smartphone shipments in Western Europe during the reporting period.

 Annex 32: the applicant’s 2019 annual report showing that smartphone shipments in Western Europe increased a further 115.4 % year-on-year.

 Annex 33: extracts from the 2019 report showing that the total gross merchandising value of the YouPin products sold had surpassed CNY 10 billion (over EUR 1.2 billion).

 Annex 34: a website extract showing that according to Canalys (global technology market analyst firm) estimates, the applicant was once again ranked as the fourth largest smartphone shipper in Western Europe in Q1 2020, with a further year-on-year increase of 79 % and a significant market share of 10 %. The extract also shows that the applicant was the largest smartphone vendor in Spain and third largest smartphone vendor in Italy in Q1 2020.

 Annex 35: a document demonstrating that the reputation and fame of XIAOMI brands has resulted in them featuring in 81st place in the Brandz Top 100 Valuable Brands 2020 with an estimated value of USD 16.64 billion, and 19th in the Top Technology brands.

The EUTM proprietor did not submit any observations in response to the application.

ABSOLUTE GROUNDS FOR INVALIDITY – ARTICLE 59(1)(b) EUTMR

General principles

Article 59(1)(b) EUTMR provides that a European Union trade mark will be declared invalid where the applicant was acting in bad faith when it filed the application for the trade mark.

There is no precise legal definition of the term ‘bad faith’, which is open to various interpretations. Bad faith is a subjective state based on the applicant’s intentions when filing a European Union trade mark. As a general rule, intentions on their own are not subject to legal consequences. For a finding of bad faith there must be, first, some action by the EUTM proprietor which clearly reflects a dishonest intention and, second, an objective standard against which such action can be measured and subsequently qualified as constituting bad faith. There is bad faith when the conduct of the applicant for a European Union trade mark departs from accepted principles of ethical behaviour or honest commercial and business practices, which can be identified by assessing the objective facts of each case against the standards (Opinion of Advocate General Sharpston of 12/03/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 60).

Whether an EUTM proprietor acted in bad faith when filing a trade mark application must be the subject of an overall assessment, taking into account all the factors relevant to the particular case (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 37).

The burden of proof of the existence of bad faith lies with the invalidity applicant; good faith is presumed until the opposite is proven.

One situation which may give rise to bad faith is when a commercial entity has obtained some degree of legal protection by virtue of the use of a sign on the market, which a competitor subsequently registers with the intention of competing unfairly with the original user of the sign.

The Court of Justice of the European Union (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 48, 53) has stated that the following factors in particular should be taken into consideration:

(a) the fact that the EUTM proprietor knows or must know that a third party is using an identical or similar sign for an identical or similar product capable of being confused with the contested EUTM;

(b) the applicant’s intention of preventing that third party from continuing to use such a sign;

(c) the degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought; and

(d) whether the EUTM proprietor in filing the contested EUTM was in pursuit of a legitimate objective.

The abovementioned are only examples drawn from a number of factors which can be taken into account in order to determine whether or not the applicant was acting in bad faith when filing the application; account may also be taken of other factors (14/02/2012, T‑33/11, Bigab, EU:T:2012:77, § 20-21; 21/03/2012, T‑227/09, FS, EU:T:2012:138, § 36).

Outline of the relevant facts

 The applicant is a leading global consumer electronics, hardware, software and internet services provider. It is one of the most well-known consumer electronics companies in the world (featuring 81st in the Brandz Top 100 Valuable Brands 2020).

 The applicant has experienced impressive growth to the extent that, in just 10 years, its products have gone from being marketed in China to being distributed in countries all around the world, both through online stores and selected stores in many places including Germany, Spain, France and Poland.

 The applicant is active under the trade mark XIAOMI YOUPIN (小米有品) through physical stores as well as through the website www.xiaomiyoupin.com. This domain name was registered in December 2016.

 The applicant owns various trade mark applications and registrations for , ‘XIAOMI YOUPIN’ (word mark) and ‘XIAOMI YOUPIN’ Chinese characters (小米有品) around the world for various classes.

 The signs ‘XIAOMI’ and ‘XIAOMI YOUPIN’ enjoy a reputation in China and in the EU.

 There is evidence of the EUTM proprietor’s knowledge of the applicant.

 When filing the application, the EUTM proprietor listed the elements of the mark as ‘YOUPIN’ in the application form whereas the Chinese characters actually translate to ‘XIAOMI YOUPIN’.

 The contested mark is identical to the applicant’s sign , and is similar to the applicant’s trade marks 小米有品.

 Part of the contested goods belong to the category of IoT goods (physical objects that are embedded with sensors, software, and other technologies for the purpose of connecting and exchanging data with other devices and systems over the internet) for which the applicant has a strong reputation. However, the contested goods are not, strictly speaking, similar to the goods registered by the earlier trade marks 小米有品.

 The EUTM proprietor previously applied for EUTM No 16 522 237 which has been surrendered after an invalidity action by the applicant.

Assessment of bad faith

As regards the EUTM proprietor’s knowledge of the earlier rights, the applicant demonstrated that the website https://digisanse.com indicates that its owner is an ‘official distributor Xiaomi in Spain’ and that this website made reference to the trade mark ‘XIAOMI’ before the filing date of the contested mark. The applicant also proved that this website is linked to the EUTM proprietor because of the identity in the addresses and names indicated on the website and in the trade mark application form (Annexes 6 and 7). Likewise, the applicant showed that the EUTM proprietor, as a member of ‘MI Europe (DHL 24hrs) - Amazon.es account’, was involved in the selling of Xiaomi products prior to the filing date of the contested mark (Annex 8). Finally, the website www.miberia.com, which is developed by the Digisanse group, states that ‘Miberia belongs to Esonline SL (the EUTM proprietor)’ and indicates that ‘we are in love with smartphones and we offer you a wide variety of brands, among which we highlight Xiaomi and Nubia. In addition to these devices, we offer you a wide variety of Xiaomi Mi Ecosystem products (vacuum cleaners, power banks, thermometers, air conditioners ...), tablets, audio, accessories, etc. In short, we work with brands that offer quality, both with the oldest in the business and with those that are emerging.’ Finally, the applicant has shown that the proprietor previously applied for EUTM No 16 522 237 for the sign and surrendered its mark after an invalidity action filed by the applicant. It appears from the documents on file that the sign is one of the applicant’s reputed earlier trade marks. This fact reinforces the presumption that the proprietor is familiar with the applicant’s trade mark portfolio.

Therefore, the evidence submitted by the applicant demonstrates that, at the time of filing the EUTM, the proprietor knew that the applicant was using the sign 小米 (‘XIAOMI’ in Latin characters) for similar goods. Moreover, being an official distributor, it must have known that the applicant was also using the earlier trade marks 小米有品 (‘XIAOMI YOUPIN’ in Latin characters) for numerous goods and services, among them some in Class 9, and that the applicant had been using the sign for an online boutique shopping platform for a year.

Indeed, even if the applicant has not provided specific evidence demonstrating the proprietor’s actual knowledge of the applicant’s signs 小米有品 and , such knowledge may be presumed. This presumption may apply even if the sign was registered in a non-EU country, as in the present case (28/01/2016, T‑335/14, DoggiS, EU:T:2016:39, § 64-71). In addition to the above, there is knowledge when the identity or quasi-identity between the contested mark and the earlier sign ‘cannot be mere coincidence’ (28/01/2016, T‑335/14, DoggiS, EU:T:2016:39, § 60). The Cancellation Division considers that, given the complexity of the earlier sign , it is not plausible that the EUTM proprietor would have coincidentally, and without copying the applicant’s sign, created an identical logo which has multiple elements such as the brown device and Chinese characters depicted in that particular font, format, size and colour. Furthermore, these characters contain the element 小米 which means ‘XIAOMI’ in Latin characters. ‘XIAOMI’ is the main trade mark and the name of the applicant for which the EUTM proprietor claims to be an official distributor.

However, as stated in case-law, the fact that the EUTM proprietor knows or must know that the invalidity applicant has been using an identical/similar sign for identical/similar goods for which a likelihood of confusion may arise is not sufficient for a finding of bad faith (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361, § 40). In order to determine whether there was bad faith, the EUTM proprietor’s intentions at the time of filing must also be taken into account.

The applicant has demonstrated that it owns various trade mark applications and registrations for the mark , ‘XIAOMI YOUPIN’ (word mark) and ‘XIAOMI YOUPIN’ Chinese characters (小米有品) around the world for various classes. However, the marks that predate the contested mark are registered in China for the sign 小米有品 (‘XIAOMI YOUPIN’) in Classes 12, 14, 17, 20, 25, 27, 28, 31, 32, 35, 36, 37, 39, 40 and 43 and for the sign in Class 9. The applicant has also demonstrated that it has been using the sign (A) or (B) since May 2018 for physical stores in China (Annex 12), such as the store in Nanjing, China, which opened on 25/05/2018 and for an online boutique shopping platform (Annex 24).

Therefore, the applicant has shown that it used an identical sign (A) or a quasi-identical sign (B) before the filing of the contested mark. The difference is limited to secondary elements.

The applicant has also shown that it used, before the filing of the contested mark, similar marks because the only element 小米有品 of the earlier marks is identically reproduced in the contested mark.

The trade marks 小米有品 (‘XIAOMI YOUPIN’) have not been registered in Class 9, with the exception of the trade mark . However, the sign has been used as a boutique lifestyle shopping platform for the selling of 2000 products in 15 different categories (Annex 24), among them numerous electronic products (IoT products) which can be classified in Class 9.

The EUTM proprietor provided no explanations as to why they chose this particular invented and distinctive sign to register as a trade mark. In the absence of any explanations from the proprietor, the Cancellation Division must question why the proprietor would deliberately create the risk that consumers would associate the proprietor’s goods with the applicant’s goods when, as established above, it was or had to have been aware of the existence of the applicant’s earlier trade marks.

It should be added that, in order to determine whether the EUTM proprietor is acting in bad faith, consideration should ultimately be given to the extent of the reputation enjoyed by a sign at the time when the application for its registration was filed, since the extent of that reputation might justify the applicant’s interest in ensuring a wider legal protection for their sign (11/06/2009, C‑529/07, Lindt Goldhase, EU:C:2009:361). It should be noted that, at the time of filing the contested mark, on 01/04/2019, the trade marks 小米有品 and the sign had been in use by the applicant and that these trade marks and signs had seen an increase in business in China before the filing, which had strengthened their reputation among the relevant public (the 2019 financial report details the success of the YouPin/小米有品 side of the business, showing that the total gross merchandising value of the YouPin products sold had surpassed EUR 1.2 billion (Annex 33)). It is true that these trade marks and signs were filed or used not long before the filing of the contested mark. However, although extended use of a mark may be a factor to be taken into consideration in assessing its reputation, that is not the only decisive factor. In a sector such as electronic products including smartphones, a mark may acquire a certain reputation in a fairly short time. In addition, it should be noted that the ‘XIAOMI YOUPIN’ (小米有品) trade marks are sub-brands of the ‘XIAOMI’ trade mark which, at the time of the filing of the contested mark, was highly reputed in China and in the EU. Indeed, the evidence submitted shows that the applicant was the fourth largest smartphone manufacturer in the world in 2018 and in 2020 (Annex 16) and the third in Spain with a market share of 13 % in April 2019 and 21 % of market share in April 2020 (Annex 18). The applicant’s global turnover figures are impressive. They were EUR 21.2 billion in 2018 and over EUR 25 billion in 2019 for smartphones but also for IoT devices and lifestyle products such as air conditioners, washing machines, smart TVs, laptops, electric scooters and robot vacuum cleaners (Annex 31). The applicant was also widely followed on social media with over 9 million Facebook followers, 2.4 million Twitter followers and over 28 million fans on their Weibo page. The information is corroborated with the rankings from independent sources which show that the brand ‘MI’ enjoys an established position among leading brands, featuring in 81st place in the Brandz Top 100 Valuable Brands 2020 with an estimated value of USD 16.64 billion, and ‘XIAOMI’ being 19th in the Top Technology brands. The sales figures, ranking and the number of awards won, clearly show the success of the applicant and its marks. Therefore, and taking into account the market presence shown by the evidence and the success and high ranking of the brands, it is concluded that the applicant enjoys a high degree of recognition among the relevant public in connection with electronic products, including IoT products, in Class 9.

The applicant sought that the registration was indisputably guided by the intention to take unfair advantage of the rights attached to its marks. Bad faith is found when it can be inferred that the EUTM proprietor’s purpose is to ‘free-ride’ on the reputation of the invalidity applicant (14/05/2019, T‑795/17, NEYMAR, EU:T:2019:329, § 51) or on its registered marks and to take advantage of that reputation (08/05/2014, T‑327/12, Simca, EU:T:2014:240, § 56). That intention is confirmed, inter alia, by the manner in which the EUTM proprietor presents its website to the public where it claims to be the ‘official distributor Xiaomi in Spain’ and where it explains ‘we offer you a wide variety of Xiaomi Mi Ecosystem products (vacuum cleaners, Power Banks, thermometers, air conditioners ...), tablets, audio, accessories, etc. In short, we work with brands that offer quality, both with the oldest in the business and with those that are emerging.’ Furthermore, the applicant rightly pointed out that, in the application form, the EUTM proprietor only translated the elements of the contested mark as ‘YOUPIN’ whereas the Chinese characters actually translate to ‘XIAOMI YOUPIN’. By missing out the ‘XIAOMI’ element, the proprietor prevented the applicant from being aware of the application through the EUIPO search report facility and increased the chance of the contested mark being registered without being noticed. As recalled above, the proprietor has not provided any explanation or evidence which could prove that its conduct was justified or followed a legitimate commercial logic in order to counter the clear evidence of bad faith submitted by the applicant.

As seen above, the EUTM proprietor knew or must have known about the applicant’s rights before the filing of the contested EUTM. It is apparent that it filed the contested EUTM, which is identical, quasi-identical or similar to the applicant’s earlier rights, with the purpose of free-riding on the reputation of the applicant’s registered marks in China. Some of the goods for which the contested mark was filed belong to the category of IoT goods for which the applicant has a strong reputation and these goods are sold by the online boutique shopping platform bearing the sign . In filing and registering the contested trade mark, the EUTM proprietor has effectively put a potential obstacle to the applicant’s business activities on the European Union market. Indeed, the applicant is a fast-growing company which has already extended its activities to the EU market where it has a strong reputation in the field of smartphones. Moreover, the EUTM proprietor has not submitted arguments or evidence that would allow the Cancellation Division to reach a different conclusion. Therefore, it must be found that the EUTM proprietor was acting in bad faith.

Extent of the invalidity

When bad faith on the part of the EUTM proprietor is established, the EUTM is declared invalid in its entirety, even for goods and/or services that are unrelated to those protected by the applicant’s marks.

The General Court confirmed the Board of Appeal’s decision in the case of 21/04/2010, R 219/2009‑1, GRUPPO SALINI / SALINI and stated that a positive finding of bad faith at the time of filing the contested EUTM could only lead to the invalidity of the EUTM in its entirety (11/07/2013, T‑321/10, Gruppo Salini, EU:T:2013:372, § 48).

Although the Court did not expand on the reasons for this conclusion, it can be safely inferred that it took the view that the protection of the general interest in business and commercial matters being conducted honestly justifies invalidating an EUTM for goods/services that are dissimilar to those of the invalidity applicant, even those that do not even belong to an adjacent or neighbouring market. Therefore, it seems only logical that the invalidity, once declared, should extend to all the goods covered by the contested EUTM.

Conclusion

In the light of the above, the Cancellation Division concludes that it has been sufficiently demonstrated that the contested EUTM was filed in bad faith and the invalidity application is successful. The European Union trade mark should be declared invalid for all the contested goods.

Since the invalidity application is entirely successful on the grounds of Article 59(1)(b) EUTMR, it is not necessary to assess the remaining grounds on which the application was based, namely Article 60(1)(a) EUTMR in conjunction with Article 8(1)(b) and Article 8(5) EUTMR, Article 60(1)(c) EUTMR in conjunction with Article 8(4) EUTMR and Article 60(2)(c) EUTMR.

COSTS

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

Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

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

The Cancellation Division

Frédérique SULPICE

Richard BIANCHI

Zuzanna STOJKOWICZ

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.