OPPOSITION Nо B 3 093 455

Alfa-Beta Vassilopoulos Single Member Societe Anonyme trading as Ab Vassilopoulos... even the birds milk!, Leof. Spαton 81, 153 44 Gerakas Attikis, Greece (opponent), represented by Vayanos Kostopoulos Law Firm, 37, Stournara Str., 106 82 Athens, Greece (professional representative)

a g a i n s t

Mcr Info Electronic, S.L., C/ Gutenberg, 12, 28906 Getafe, Spain (applicant), represented by José Luis Donoso Romero, Avenida Isabel de Farnesio, 30 A, 28660 Boadilla del Monte (Madrid), Spain (professional representative).

On 23/03/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 093 455 is upheld for all the contested goods and services.

2. European Union trade mark application No 18 046 922 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 and services of European Union trade mark application No 18 046 922 for the word mark ‘AB MATERIALS’. The opposition is based on, inter alia, European Union trade mark registration No 5 474 754 for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR and Article 8(5) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

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

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 5 474 754.

a) The goods and services

The goods and services on which the opposition is based are, inter alia, the following:

Class 16: Paper, cardboard and goods made from these materials, not included in other classes, printed matter; printed matter; bookbinding material; photographs; articles of stationery; adhesives for stationery or household purposes; artists’ materials; painters’ brushes; typewriters and office requisites (except furniture); instructional and teaching materials except apparatus; plastic materials for packaging (not included in other classes); printers’ type; printing blocks; adhesive tapes for stationery or household purposes; babies’ diapers of paper and cellulose, disposable; babies’ napkin-pants [diaper-pants]; bags (garbage -) of paper or of plastics; bags for microwave cooking; diaper-pants (babies’ -); garbage bags of paper or of plastics; holders for checkbooks [cheque books]; marking chalk; packaging material made of starches; passport holders; photograph stands; self-adhesive tapes for stationery or household purposes; Sheets of reclaimed cellulose for wrapping.

Class 35: Advertising, business management, business administration, office functions, collection (except transport) of various goods, for others, enabling customers to view and purchase these goods conveniently, chemicals used in industry, science and photography, as well as in agriculture, horticulture and forestry, unprocessed artificial resins, unprocessed plastics, manures, fire-extinguishing compositions, tempering and soldering preparations, chemical substances for preserving foodstuffs, tanning substances, adhesives used in industry, bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices, pharmaceutical and veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, food for babies, plasters, materials for dressings, material for stopping teeth, dental wax, disinfectants, preparations for destroying vermin, fungicides, herbicides, common metals and their alloys, metal building materials, transportable buildings of metal, materials of metal for railway tracks, non-electric cables and wires of common metal, ironmongery, small items of metal hardware, pipes and tubes of metal, safes, goods of common metal not included in other classes, ores, hand tools and implements (hand-operated), cutlery, side arms, razors, paper, cardboard and goods made from these materials, not included in other classes, printed matter, bookbinding material, photographs, stationery, adhesives for stationery or household purposes, artists’ materials, paintbrushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging (not included in other classes), printers’ type, printing blocks, furniture, mirrors, picture frames, goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, household or kitchen utensils and containers (not of precious metal or coated therewith), combs and sponges, brushes (except paintbrushes), brush-making materials, articles for cleaning purposes, steel wool, unworked or semi-worked glass (except glass used in building), glassware, porcelain and earthenware not included in other classes, textiles and textile goods, not included in other classes, bed and table covers, games and playthings, gymnastic and sporting articles not included in other classes, decorations for Christmas trees, meat, fish, poultry and game, meat extracts, preserved, frozen, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats, coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry and confectionery, ices, honey, treacle, yeast, baking powder, salt, mustard, vinegar, sauces (condiments), spices, ice, agricultural, horticultural and forestry products and grains, not included in other classes, live animals, fresh fruits and vegetables, seeds, natural plants and flowers, foodstuffs for animals, malt, beers, mineral and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages, alcoholic beverages (except beers).

Class 39: Transport; packaging and storage of goods; arranging travel tours.

The contested goods and services are the following:

Class 16: Stationery and educational supplies; writing and stamping implements; office machines; printing and bookbinding equipment; stationery; bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; office requisites; books; agendas; periodicals; adhesives for stationery; file folders; binders; file dividers; writing or drawing books; pencils; ball pens; filing cases; pencil cases; drawing sets; cases for stationery; packing cardboard; cartons of cardboard for packaging; adhesive packaging tapes; gift packaging; book covers; wrapping materials made of paper; adhesive labels; gift tags; labels of paper; ink sticks; desk trays; file trays; desk trays; staples for offices; seals [stamps]; numbering stamps; stamp inks; ink stamps; cellophane paper; envelopes [stationery]; gift bags; paper bags; carrier bags; bags made of paper for packaging; bags made of plastics for packaging; paper mail pouches.

Class 35: Business assistance, management and administrative services; advertising, marketing and promotional services; advertising; business management services relating to electronic commerce; business management; business administration; office functions; organization of events, exhibitions, fairs and shows for commercial, promotional and advertising purposes; mediation of advertising; provision of advertising space; publication of publicity texts; business advisory services relating to the establishment and operation of franchises; services rendered by a franchisor, namely, assistance in the running or management of industrial or commercial enterprises; providing consumer product information via the internet; providing information about commercial business and commercial information via the global computer network; provision of information relating to advertising; provision of information concerning commercial sales; retail services in relation to stationery and educational supplies; wholesale services in relation to stationery and educational supplies; online retail services in relation to stationery and educational supplies; retail services in relation to writing and stamping implements; wholesale services in relation to writing and stamping implements; online retail services in relation to writing and stamping implements; retail services in relation to office machines; wholesale services in relation to office machines; online retail services in relation to office machines; retail services in relation to printing and bookbinding equipment; wholesale services in relation to printing and bookbinding equipment; online retail services in relation to printing and bookbinding equipment; retail services in relation to paper stationery; wholesale services in relation to paper stationery; online retail services in relation to stationery; retail services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; wholesale services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; online retail services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; retail services in relation to office requisites, except furniture; wholesale services in relation to office requisites, except furniture; online retail services in relation to office requisites, except furniture.

Class 39: Transport; packaging and storage of goods; distribution of stationery and educational material.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

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

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

Contested goods in Class 16

The contested stationery and educational supplies; writing and stamping implements; stationery; office requisites; adhesives for stationery; file folders; binders; file dividers; agendas; writing or drawing books; pencils; ball pens; filing cases; pencil cases; drawing sets; cases for stationery; adhesive labels; labels of paper; ink sticks; desk trays; file trays; desk trays; staples for offices; seals [stamps]; numbering stamps; stamp inks; ink stamps; envelopes [stationery]; paper mail pouches are either identically contained in (including synonyms), included in the broad category of, or overlap with, the opponent’s articles of stationery. Therefore, they are identical.

The contested office machines; printing equipment are included in the broad category of, or overlap with, the opponent’s typewriters and office requisites (except furniture). Therefore, they are identical.

The contested books; periodicals are included in the broad category of the opponent’s printed matter. Therefore, they are identical.

The contested book covers; bookbinding equipment are included in the broad category of the opponent’s bookbinding material. Therefore, they are identical.

The contested cellophane paper is included in the broad category of the opponent’s paper. Therefore, they are identical.

The contested bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; packing cardboard; cartons of cardboard for packaging; adhesive packaging tapes; gift packaging; wrapping materials made of paper; gift tags; gift bags; paper bags; carrier bags; bags made of paper for packaging; bags made of plastics for packaging are at least similar to the opponent’s packaging material made of starches. These goods are usually produced by the same undertakings and sold through the same distribution channels. Furthermore, they target the same relevant public. Some also have the same nature and purpose. Moreover, they might be in competition.

Contested services in Class 35

The contested business assistance, management and administrative services; advertising, marketing and promotional services; advertising; business management services relating to electronic commerce; business management; business administration; office functions; provision of advertising space; publication of publicity texts; business advisory services relating to the establishment and operation of franchises; services rendered by a franchisor, namely, assistance in the running or management of industrial or commercial enterprises; providing information about commercial business and commercial information via the global computer network; provision of information relating to advertising; provision of information concerning commercial sales are all business services that are either identically contained (including synonyms) in the opponent’s list of services, or included in one of the opponent’s broad categories of advertising (for example, the contested provision of advertising space) or business management (for example, the contested business management services relating to electronic commerce). Therefore, these services are identical.

Retail services of specific goods and retail services of other specific goods have the same nature as both are retail services, the same purpose of allowing consumers to conveniently satisfy different shopping needs, and the same method of use. Similarity is found between the retail services of specific goods where the goods are commonly retailed together in the same outlets and they target the same public. However, the degree of similarity between retail of specific goods on the one hand and retail of other goods on the other hand may vary depending on the proximity of the retailed goods and the particularities of the respective market sectors.

Therefore, the contested retail services in relation to stationery and educational supplies; wholesale services in relation to stationery and educational supplies; online retail services in relation to stationery and educational supplies; retail services in relation to writing and stamping implements; wholesale services in relation to writing and stamping implements; online retail services in relation to writing and stamping implements; retail services in relation to office machines; wholesale services in relation to office machines; online retail services in relation to office machines; retail services in relation to printing and bookbinding equipment; wholesale services in relation to printing and bookbinding equipment; online retail services in relation to printing and bookbinding equipment; retail services in relation to paper stationery; wholesale services in relation to paper stationery; online retail services in relation to stationery; retail services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; wholesale services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; online retail services in relation to bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; retail services in relation to office requisites, except furniture; wholesale services in relation to office requisites, except furniture; online retail services in relation to office requisites, except furniture are at least similar to the opponent’s collection (except transport) of various goods, for others, enabling customers to view and purchase these goods conveniently paper, cardboard and goods made from these materials, not included in other classes, printed matter, bookbinding material, photographs, stationery, adhesives for stationery or household purposes, artists’ materials, paintbrushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging (not included in other classes), printers’ type, printing blocks.

The contested organization of events, exhibitions, fairs and shows for commercial, promotional and advertising purposes is similar to the opponent’s advertising as they have the same purpose. They usually coincide in producer and relevant public.

The contested providing consumer product information via the internet is similar to the opponent’s collection (except transport) of various goods, for others, enabling customers to view and purchase these goods conveniently paper, cardboard and goods made from these materials, not included in other classes as they usually coincide in producer, relevant public and distribution channels. Consumer information services directly relate to the activities surrounding the actual sale of goods, including information about the goods themselves, encouraging consumers to make a sales transaction with a particular retailer, rather than with a competitor. These services are often provided by the retailer itself at an information or customer service desk in a retail outlet, or via a dedicated section of an online store, where the retail services are also offered to the same consumers.

The contested mediation of advertising is similar to a low degree to the opponent’s business management as they have the same purpose. They usually coincide in producer and relevant public. Business mediation services are services rendered by specialists with the purpose of helping businesses to resolve their business-related problems, whether in the area of purchasing or in the context of wholesaling and retailing. It includes services wherein a third party puts sellers and buyers of something in contact with each other, negotiates between them, and receives a commission. Business mediation and business management are closely related. Companies providing business management services, which includes all aspects of overseeing and supervising business operations, may also provide mediation services that aim to resolve or prevent business-related problems.

Contested services in Class 39

Transport; packaging and storage of goods are identically contained in both lists of services.

The contested distribution of stationery and educational material is included in the broad category of, or overlaps with, the opponent’s transport. Therefore, they are identical.

b) Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods and services found to be identical or similar (to varying degrees) are directed at the public at large and at a professional public.

The public’s degree of attentiveness may vary from average (for example, for stationary in Class 16) to high (for example, for business management in Class 35), depending on the price, specialised nature, or terms and conditions of the goods and services purchased.

c) The signs

	AB MATERIALS
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).

Both signs contain the letter combination ‘AB’, which is placed vertically in the earlier mark and horizontally in the contested sign. It will be read as ‘AB’ in both signs because consumers naturally read from left to right or from top to bottom.

Contrary to the applicant’s arguments, the distinctiveness of two-letter signs is not automatically considered weak. The Court held that the distinctiveness of a sign must be assessed according to an examination based on the facts, focusing on the goods and services concerned, and the same criteria apply to other word marks (09/09/2010, C‑265/09 P, α, EU:C:2010:508, § 33-39).

At least part of the relevant public might perceive the letters ‘A’ and ‘B’ as the first two letters of the alphabet, which have no meaning in relation to the relevant goods and services and are therefore distinctive. Another part of the relevant public might perceive ‘AB’ as a meaningless word/letter combination, in which case, they are also distinctive.

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, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The contested sign’s element ‘MATERIALS’ is meaningful for a significant part of the relevant public, such as the English-speaking part. It will be perceived as ‘the matter from which a thing is or can be made; things needed for an activity; facts, information, or ideas for use in creating a book or other work’ (information extracted from Oxford Dictionaries on 23/03/2021 at https://www.lexico.com/en/definition/material). This element is descriptive or laudatory in relation to all the goods and services. It indicates that the goods in Class 16 are materials needed for a certain activity; relates to transportation, distribution, packaging, storage of materials in Class 39; or concerns the retail/wholesale of materials, or things, facts, or ideas for business activities in Class 35. Therefore, this element has a low degree of distinctiveness for the English-speaking part of the relevant public.

For the part of the relevant public that will understand the word ‘MATERIALS’ and will perceive it as having a low degree of distinctiveness, the element ‘AB’ will be the most distinctive element in the contested sign. Therefore, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public, as the degree of similarity between the signs will be higher for this part of the relevant public.

Furthermore, consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right and from top to bottom, which makes the part placed at the left or on top of the sign (the initial part) the one that first catches the attention of the reader. This further reinforces the fact that the element ‘AB’, as well as being the most distinctive element in the contested sign, is also the element that will first catch the consumers attention.

It is true, as argued by the applicant, that the length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words, small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between long signs. However, although in this case the distinctive verbal elements are short, they consist of the same combination of letters – ‘A’ and ‘B’ – which will not go unnoticed by the relevant public, despite the fact that they are depicted vertically in the earlier mark and horizontally in the contested sign.

Moreover, when a trade mark is composed of verbal and figurative elements, the consumer is likely to focus primarily on the verbal element as a point of reference (02/12/2020, T‑687/19, Marq / MARK (fig.), EU:T:2020:582, § 63; 20/06/2019, T‑390/18, WKU WORLD KICKBOXING AND KARATE UNION (fig.) / WKA et al., EU:T:2019:439, § 65). Indeed, the verbal element must, in principle, be considered more distinctive because the average consumer will more readily refer to the goods in question by citing its name than by describing the figurative element (25/11/2020, T‑875/19, Flaming Forties, EU:T:2020:564, § 58). This is fully applicable here, because the earlier mark’s figurative elements are not really elaborated. They mainly consist of a framed background with rounded corners and the use of different basic colours, which will be perceived as mostly decorative (28/10/2010, R 1597/2008‑1 and R 1685/2008‑1, aB (fig.) / AB (fig.) et al, § 36).

Neither of the signs has elements that are more dominant (eye-catching) than others.

Visually, the signs coincide in the letters ‘A’ and ‘B’. These letters form the most distinctive element in both signs. Furthermore, as explained above, they are the elements on which consumers will primarily focus. The signs differ in that the letters are depicted in the earlier mark in a rather standard typeface and placed vertically, while in the contested sign they are depicted horizontally. The consumer is used to seeing different graphical depictions of letters, so the rather standard typeface used in the earlier mark will not have a major visual impact. The letter, per se, is primarily perceived without a detailed study of its font or typeface. The signs further differ in the contested sign’s additional verbal element ‘MATERIALS’, and in the earlier mark’s figurative elements (a frame with rounded corners and the blue and white colours), which all have less impact for the reasons explained above.

Despite these visual differences, the overall graphical depiction is not considered to eclipse the common letters ‘A’ and ‘B’, which are easily and clearly recognisable in both signs and, moreover, the signs’ most distinctive elements. Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of ‘AB’, which is identically present in both signs. The signs differ in the sound of the contested sign’s additional verbal element, ‘MATERIALS’. However, this has a low degree of distinctiveness and, consequently, reduced impact.

Therefore, taking into account the coincidences in the most distinctive elements of the signs, the signs are aurally similar to a high degree.

Conceptually, both signs will be perceived by part of the public as the first two letters of the alphabet, while the contested sign’s additional verbal element ‘MATERIALS’ will evoke a concept with a low degree of distinctiveness. For this part of the relevant public, the signs are conceptually similar to an average degree.

Another part of the relevant public will perceive the letters ‘AB’ as meaningless and will only grasp the meaning of the contested sign’s element ‘MATERIALS’. For this part of the relevant public, the signs are conceptually not similar. However, the impact of this conceptual difference is limited, as it originates from an element with a low degree of distinctiveness.

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

d) Distinctiveness of the earlier 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.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’).

Consequently, the 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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association that can be made with the registered mark and the degree of similarity between the marks and between the goods or services identified. It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20; 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 24; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

The earlier mark has an average degree of inherent distinctiveness. The relevant public is the public at large and a professional public. The degree of attention varies from average to high.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

The signs are visually similar to an average degree and aurally similar to a high degree. Conceptually, they are similar to an average degree for part of the relevant public, and not similar for another part of the relevant public.

As the most distinctive elements of the signs are short elements, the visual aspect is an important factor to take into account when comparing the signs. The stylisation and, in particular, whether the letters are recognisable as such in the sign, is important. Consequently, the visual overall impression of the signs may be different when two conflicting signs – albeit containing or comprising the same two-letter combination as their most important elements – are stylised in a sufficiently different way or contain a sufficiently different figurative element that their different overall graphical depiction eclipses the common verbal element.

In the present case, the verbal element ‘AB’ is the most distinctive element in both signs. The remaining elements consist essentially of background frames and basic colours (blue and white) in the earlier mark, and an additional verbal element (‘MATERIALS’) that has a low degree of distinctiveness in the contested sign. Although the earlier mark is figurative, the letters are in a rather common font and are clearly recognisable as such. The fact that they are positioned vertically in the earlier mark and horizontally in the contested sign will not stop them from being perceived in the same sequence, as consumers read from top to bottom and from left to right. Therefore, their overall graphical depiction does not eclipse the common verbal element.

Considering all the above, there is a likelihood of confusion on the part of the public, even taking into account a higher degree of attention for some of the goods and services.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 5 474 754. It follows that the contested trade mark must be rejected for all the contested goods and services, including those found similar to only a low degree. This is in accordance with the aforementioned interdependence principle, as the low degree of similarity between some of the goods and services is offset by the higher degree of similarity between the signs.

Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing mark due to its reputation, as claimed by the opponent. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

As earlier European Union trade mark registration No 5 474 754 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods and services 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(1)(b) EUTMR, there is no need to further examine the other ground of the opposition, namely Article 8(5) EUTMR.

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

Marzena MACIAK

Saida CRABBE

Chantal VAN RIEL

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.