OPPOSITION Nо B 3 092 988

PPHU Herbapol Sp. z o.o., Rakowiecka 36 lok. 330, 02‑532 Warszawa, Poland (opponent), represented by Karcz Zakrocka Patent & Trade Mark Attorneys, Ul. Orzeszkowej 14 m 3, 02‑374 Warszawa, Poland (professional representative)

a g a i n s t

Herberal S.R.L., Via San Quirino 40, 39100 Bolzano, Italy (applicant), represented by Fabio Azzolina, Via Borromei 2 C/o La&p, 20123 Milano, Italy (professional representative).

On 27/04/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 092 988 is partially upheld, namely for the following contested goods:

Class 3: Oils for hair conditioning; cleansing oil; essential oils and aromatic extracts; massage oils; essential oils; scented oils; aromatic oils; aromatics; oils for cosmetic purposes; essential vegetable oils; oils for toilet purposes; toiletries.

Class 5: Vitamin supplements; sanitary preparations and articles; food supplements; homeopathic supplements; probiotic supplements; antimigraine drugs; pharmaceutical drugs; pharmaceuticals and natural remedies; nutritional supplements; plant extracts for pharmaceutical purposes; dietary supplements and dietetic preparations.

Class 29: Flavoured oils; vegetable extracts for food; oils for food; vegetable oils for food; vegetable fats for cooking; vegetable jellies; blended vegetable oils for culinary purposes; cooking oils; oils for food; spiced oils; edible oils and fats.

2. European Union trade mark application No 18 046 974 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

On 26/08/2019, the opponent filed an opposition against some of the goods of European Union trade mark application No 18 046 974 (figurative mark), namely against all the goods in Classes 3, 5 and 29. The opposition is based on the following collective trade marks: European Union trade mark registration No 3 783 016 ‘HERBAPOL’ (word mark), European Union trade mark registration No 3 868 049 (figurative mark), Polish trade mark registration No 305 371, ‘HERBAPOL’ (word mark), Polish trade mark registration No 305 372 (figurative mark), Polish trade mark registration No 000 356 (figurative mark), Polish trade mark registration No 000 312 ‘HERBAPOL’ (word mark). The opponent invoked Article 8(1)(b) 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 Polish trade mark registrations No 305 371 and No 305 372 for which the requirement to prove the genuine use does not apply due to the pending grace period.

a) The goods

The goods on which the opposition is based are the following:

Class 5: Dietary supplements and dietetic preparations; medical preparations and articles; herbal medicine; herbal compounds for medical use; herbal teas for medicinal purposes; herbal drinks for medicinal use; candy for medical purposes; dietetic foods adapted for medical purposes; medicinal herbs; medicinal tea.

Class 29: Jellies, jams, compotes, fruit and vegetable spreads; candied fruit; glazed fruit; cooked fruits; preserved fruit; bottled fruits; processed fruits; fruit pastes; fruit preparations; jams, marmalades; jams and fruit marmalades, jams, plum jam, beet and tomato concentrated juice, frozen fruit and vegetables, cooked vegetables, preserved vegetables, canned vegetables, dried vegetables, vegetable and meat preserves and vegetable and poultry preserves, fruit and vegetable juices, fruit and vegetable drinks, fruit and potato crisps, vegetable juices for cooking.

Class 30: Vegetable and mushroom sauces; vegetable sauces and ketchups; sauces for rice; pasta sauce; sauces for meat; fish sauces; honey; natural honey; herbal honey; natural ripe honey; honey for food; sweet spreads; non-medicated sweets being honey-based; cereal products; cereals; pasta; cereal-based snack food; ready-to-eat cereals; dietetic foods of vegetable origin, not for medical purposes; dried cereal flakes; muesli.

The contested goods are the following:

Class 3: Oils for hair conditioning; cleansing oil; essential oils and aromatic extracts; massage oils; cleaning and fragrancing preparations; essential oils; scented oils; aromatic oils; aromatics; oils for cosmetic purposes; essential vegetable oils; oils for toilet purposes; household fragrances; toiletries.

Class 5: Vitamin supplements; sanitary preparations and articles; food supplements; homeopathic supplements; probiotic supplements; antimigraine drugs; pharmaceutical drugs; pharmaceuticals and natural remedies; nutritional supplements; plant extracts for pharmaceutical purposes; dietary supplements and dietetic preparations.

Class 29: Flavoured oils; vegetable extracts for food; oils for food; vegetable oils for food; vegetable fats for cooking; vegetable jellies; blended vegetable oils for culinary purposes; cooking oils; oils for food; spiced oils; edible oils and fats.

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 3

Ethereal oils and aromatic extracts include goods that can be used as remedies for mild health conditions, such as diseases of the skin and scalp, hair loss, stress, insomnia etc. To that extent, ethereal oils and aromatic extracts can serve the same purpose as goods included in the category of medical and veterinary preparations and articles. These goods satisfy the needs of the same public and coincide in their distribution channels, such as pharmacies. Therefore, the contested oils for hair conditioning; cleansing oil; essential oils and aromatic extracts; massage oils; essential oils; scented oils; aromatic oils; aromatics; oils for cosmetic purposes; essential vegetable oils; oils for toilet purposes are considered similar to a low degree to the opponent’s medical preparations and articles in Class 5.

The contested toiletries and the opponent’s medical preparations and articles in Class 5 have the same purpose and distribution channels. They target the same public and originate from the same or economically linked undertakings. Therefore, they are similar.

The contested cleaning and fragrancing preparations; household fragrances are considered dissimilar to all the opponent’s goods in Classes 5, 29 and 30. These goods have different purposes, methods of use and natures. They are neither in competition nor complementary. Their commercial origin does not usually coincide and they are distributed through different channels.

Contested goods in Class 5

Dietary supplements and dietetic preparations are identically contained in both lists of goods.

The contested vitamin supplements; food supplements; homeopathic supplements; probiotic supplements; nutritional supplements are included in the broad category of the opponent’s dietary supplements and dietetic preparations. Therefore, they are identical.

The contested antimigraine drugs; pharmaceutical drugs; pharmaceuticals and natural remedies are at least similar, if not identical, to the opponent’s medical preparations and articles. These goods target the same public through the same distribution channels. They have the same general purpose and can be in competition. They usually originate from the same undertakings.

The contested plant extracts for pharmaceutical purposes are similar to the opponent’s medical preparations and articles. These goods have the same purpose and can be in competition. They target the same public through the same distribution channels.

Sanitary preparations and articles serve medical purposes related to hygiene and are used in the healthcare sector, hospitals, dental clinics, consulting rooms, and at home. The opponent’s medical preparations and articles have the same general purpose, namely to cure diseases and improve health. They are usually produced by the same undertakings and are distributed to the same relevant public through the same channels. They are considered similar.

Contested goods in Class 29

Vegetable jellies are included in the broad category of the opponent’s jellies. Therefore, they are identical.

Vegetable extracts for food are similar to the opponent’s preserved vegetables in Class 29. These goods target the same public through the same distribution channels. Their commercial origin usually also overlaps.

Flavoured oils; oils for food; vegetable oils for food; vegetable fats for cooking; blended vegetable oils for culinary purposes; cooking oils; oils for food; spiced oils; edible oils and fats are similar to the opponent’s vegetable sauces and ketchups in Class 30 as they have the same purpose of seasoning of food. As such, their method of use is also the same and they can be in competition. They also target the same public.

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 found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise in medical field.

It is apparent from the case-law that, insofar as pharmaceutical preparations, whether or not issued on prescription, are concerned, the relevant public’s degree of attention is relatively high (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

c) The signs

1) No 305 371 HERBAPOL 2) No 305 372
Earlier trade marks	Contested sign

The relevant territory is Poland.

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).

As claimed by the applicant, the element ‘HERBA-’ of the earlier mark might be associated by part of the public with the Polish word herbata which means ‘tea’. This element is therefore weak at least in relation to some of the goods in Class 5. It remains distinctive for the part of the public that would not make this association and will perceive the sign as a whole.

The element ‘HERB’, present in both signs, comes from Latin and means ‘a plant whose leaves are used to add flavour to food or as a medicine’. As this element is frequently used in medical, pharmaceutical and dietetic fields, it is likely to be associated by professionals with this meaning. As such, this element is considered weak at least in relation to some of the goods in Class 5. This meaning, however, is not likely to be grasped by the public at large and as such it will be meaningless and distinctive to a normal degree.

The signs ‘HERBAPOL’ and ‘HERBERAL’, taken as a whole, are arbitrary terms with no specific meaning despite the connotation of the initial part ‘HERB’ for part of the relevant public and for at least some of the goods.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

Visually and aurally, the signs coincide in the letters/sounds ‛HERB***L’. 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, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. In relation to the earlier word mark, protection is sought for the word as such and not its written form, differences in the use of lower or upper case are immaterial. The signs are both composed of three syllables (HER-BA-POL v HER-BE-RAL) and, as such, their rhythm and intonation are the same.

However, they differ in the letters/sounds ‘APO’ of the earlier sign and ‘ERA’ of the contested sign. The signs also differ in their depiction which is, however, limited to the quite fanciful font.

Therefore, despite coinciding in the weak element for at least some of the goods and for part of the relevant public, the signs are visually and aurally similar to an average degree.

Conceptually, neither of the signs has a meaning for a part of the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

For another part of the public, namely professionals, although the signs as a whole do not have any meaning, the element ‘HERB’, included in both signs, will be associated with the meaning explained above. To that extent, the signs are conceptually similar to at least a low degree.

Finally, for the remaining part of the public that would associate the element ‘HERBA’ of the earlier sign with tea, the signs are not conceptually similar, since one of the signs will not be associated with any meaning.

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 marks

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

The opponent did not explicitly claim that its marks are particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier marks will rest on their distinctiveness per se. In the present case, the earlier trade marks as a whole have no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier marks must be seen as normal, despite the presence of a weak element in the marks at least for part of the public, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

The goods are partly identical, partly similar to varying degrees and partly dissimilar. They target public at large and professionals. The degree of attention varies from average to high.

The signs are visually and aurally similar to an average degree. Conceptually, the signs are similar to a low degree, not similar or neutral, depending on the perception of the relevant public. The earlier marks enjoy a normal degree of distinctiveness.

The signs under comparison are composed of eight letters/sounds, four of which are in the same position, ‘HERB***L’. The signs coincide in their beginnings and final letters and the main differences are in the middle part of the signs where they are less noticeable.

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).

Even though the common element ‘HERB’ is weak for at least some of the goods at issue and for part of the relevant public, this does not mean that the comparison of the signs may simply be reduced to comparing ‘APOL’ and ‘ERAL’. The fact that the consumer will break a word sign down into elements that, for them, suggest a concrete meaning or that resemble words known to them, cannot necessarily mean that that consumer will view those elements as separate signs.

Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark; the comparison must be made by examining each of the marks in question as a whole (06/10/2005, C‑120/04, Thomson Life, EU:C:2005:594, § 29).

The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. The visual, aural and conceptual similarities of the marks must therefore be assessed on the overall impression created by the marks, bearing in mind their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s Polish trade mark registrations No 305 371 and No 305 372.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical or similar to varying degrees to those of the earlier trade marks.

The rest of the contested goods, namely cleaning and fragrancing preparations; household fragrances in Class 3 are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

The opposition will now proceed with the examination of proof of use in relation to the remaining earlier rights and with regard to the dissimilar goods only.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based, namely European Union trade mark registration No 3 783 016 ‘HERBAPOL’ (word mark), European Union trade mark registration No 3 868 049 (figurative mark), Polish trade mark registration No 000 356 (figurative) and Polish trade mark registration No 000 312 ‘HERBAPOL’ (word mark).

The request was submitted in due time and is admissible given that the earlier trade marks were registered more than five years prior to the relevant date mentioned above.

The date of filing of the contested application is 04/04/2019. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in the European Union and in Poland from 04/04/2014 to 03/04/2019 inclusive.

Furthermore, the evidence must show use of the trade marks for the goods on which the opposition is based, namely the following:

EUTM No 3 783 016

Class 3: Cosmetics, essential oils.

Class 5: Pharmaceutical preparations.

Class 30: Pepper, spices.

Class 31: Seeds, grains, plants, herbs.

Class 32: Syrups and other preparations for making beverages.

EUTM No 3 868 049

Class 3: Cosmetics, essential oils.

Class 5: Pharmaceutical preparations.

Class 30: Teas.

Class 31: Seeds, plants, herbs, agricultural, horticultural and forestry products.

Class 32: Syrups and other preparations for making beverages.

Polish trade mark registration No 000 312

Class 3: Essential oils, cosmetics.

Class 5: Pharmaceutical preparations.

Class 30: Pepper, spices.

Class 32: Syrups and other preparations for making beverages.

Polish trade mark registration No 000 356

Class 3: Essential oils, cosmetics.

Class 5: Pharmaceutical preparations.

Class 30: Spices, teas.

Class 31: Seeds, plants, herbs, agricultural, horticultural and forestry products.

Class 32: Syrups and other preparations for making beverages.

For reasons of procedural economy, the proof of use will be examined solely in relation to essential oils in Class 3 as these are the only goods on which the opposition is based that might be found similar to the remaining contested goods in Class 3, namely cleaning and fragrancing preparations; household fragrances.

The remaining opponent’s goods in Classes 5, 30, 31 and 32 are clearly dissimilar to the contested cleaning and fragrancing preparations; household fragrances, as they have completely different natures, purposes and methods of use. They are neither in competition nor complementary. They are distributed through different channels and originate from different undertakings. In addition, it should be noted that no similarity can be found in relation to cosmetics in Class 3 which include preparations for enhancing or protecting the appearance, odour or fragrance of the body. The contested cleaning and fragrancing preparations; household fragrances, on the other hand, are substances used for household washing, cleaning or to make homes and indoor spaces smell nice by providing a fragrant, pleasant odour. Therefore, the opponent’s goods are for personal use on the body, while the goods applied for are for household use, for cleaning floors, bathrooms, domestic items, laundry or enhancing house fragrance etc. These goods are clearly dissimilar as they serve different purposes and have different natures and methods of use. They are also distributed through different channels as they are sold in different sections of supermarkets and different outlets. Their commercial origins are also distinct. Moreover, according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from each other on the ground that they appear in the same or different classes under the Nice Classification.

Therefore, it is immaterial for the present proceedings whether or not genuine use had been proved for the abovementioned goods in Classes 5, 30, 31, 32 and cosmetics in Class 3 as, according to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since these goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled. Therefore, the opposition must be rejected and it is unnecessary to examine the evidence of use filed by the opponent.

In view of the above, the examination of use will continue with regard to the opponent’s essential oils in Class 3 covered by all earlier rights subject to the use obligation.

According to Article 10(3) EUTMDR, the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.

On 30/03/2020, in accordance with Article 10(2) EUTMDR, the Office gave the opponent until 04/06/2020 to submit evidence of use of the earlier trade marks. This time limit was extended and expired on 04/08/2020. On 31/07/2020, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following.

 Regulation governing use of collective trade mark ‘HERBAPOL’ in Polish with translation into English dated 09/04/2015.

 Six sets of invoices together with price lists in Polish with partial translation of the types of products (only headings have been translated). Each set shows use by the same entity that is entitled to use the collective trade marks, namely by Zakłady Zielarskie w Krakowie S.A., and contains four invoices for each year of use from 2014 to 2019 (24 invoices in total) as well as pictures of some products, mainly teas, infusions, cosmetics and syrups. The only goods that fall under the category of essential oils, according to the attached price lists, are: płyn do masażu, olejek z geranium, olejek lawendowy, and olejek z drzewa herbacianego. These products total 41 units in all the attached invoices.

 Extract presenting the history of the company present on the Polish market since 1949, as well as the Herbapol brand identity evolution in Polish and English.

 Screenshot from the Herbapol Wrocław S.A. website regarding the award ‘Grand Prix of Pharmacy 2018’ for the product Hemorol in the category ‘preparation for the treatment of hemorrhoid’.

 Certificate demonstrating that Herbapol obtained the award ‘Superbrands 2018’ and ‘Superbrands Polska Marka 2018’ with no reference to the area or activity.

 Internet links to the opponent’s website with the product offers including essential oils.

The invoices, price lists and regulation show that the place of use is Poland. This can be inferred from the language of the documents (Polish), the currency mentioned (PLN) and some addresses in Poland. Therefore, the evidence relates to the relevant territory.

All of the evidence is dated within the relevant period.

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, and its commercial volume, duration and frequency.

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

The documents filed, namely invoices and price lists, do not provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope and the duration and frequency of use. The evidence demonstrates some use of the trade mark in relation to the relevant goods; however, it is not sufficient to prove that the trade mark at issue has been genuinely used on the market. Even if use of the mark need not be quantitatively significant for it to be deemed genuine, the overall sales of 41 units of different essential oils is considered a very low quantity considering that it refers to quite cheap goods for everyday consumption. The mere fact that essential oils are included in some of the price lists or are available on the opponent’s website does not prove the extent of their sales. A printout from a website or collective trade mark use regulation cannot prove the extent of any distribution or the number of sales of the relevant goods under the earlier mark on the European or Polish market. The awards won by Herbapol either refer to different goods (pharmaceutical preparations) or do not relate to any specific goods. The evidence, taken as a whole, does not provide sufficient indications to allow the Opposition Division, without resorting to probabilities or suppositions, to ascertain whether there were sufficient sales of the goods in question on the market or to what extent the goods have been distributed.

Therefore, the Opposition Division considers that the opponent has not provided sufficient indications concerning the extent of the use of the earlier mark in relation to essential oils in Class 3.

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145; 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

Therefore, the opposition must be rejected pursuant to Article 47(2) EUTMR and Article 10(2) EUTMDR in relation the earlier European Union trade mark registrations and pursuant to Article 47(2) and (3) EUTMR and Article 10(2) EUTMDR in relation to the earlier Polish trade mark registrations.

As explained above, given that the opposition is not well founded under Article 8(1) EUTMR in relation to the remaining goods in Classes 5, 30, 31, 32 and cosmetics in Class 3, as they are clearly dissimilar to the remaining contested goods in Class 3, it is unnecessary to examine the evidence of use filed by the opponent in relation to the remaining goods for which proof of use was required.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

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

The Opposition Division

Anna BAKALARZ

Katarzyna ZANIECKA

Monika CISZEWSKA

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.