CANCELLATION No 41 621 C (INVALIDITY)

Deutsches Rotes Kreuze.V., Carstennstraße 58, 12205 Berlin, Germany (applicant), represented by Harte-Bavendamm Rechtsanwälte PartnerschaftsgesellschaftmbB, Am Sandtorkai 77, 20457 Hamburg, Germany (professional representative)

a g a i n s t

Medican Campus Nederland B.V., Noorderpoort 16, 8601 HC Sneek, Netherlands (EUTM proprietor), represented by Merkenspot, Savannahweg 17, 3542 AW Utrecht, Netherlands (professional representative).

On 02/03/2021, the Cancellation Division takes the following

DECISION

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

2. European Union trade mark No 18 107 012 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 18 107 012 (the EUTM) for the figurative mark , which was filed on 13/08/2019 and registered on 09/01/2020.

The request is directed against all the goods covered by the EUTM, namely:

Class 5: Pharmaceutical preparations for human use; dietary and nutritional supplements; dietetic and nutritional substances; dietetic foodstuffs and dietetic substances adapted for medical or veterinary use; herbal medicine; nutraceuticals for therapeutic purposes; medicinal oils; medicinal oils based on CBD, THC and other cannabinoids.

The applicant invoked Article 59(1)(a) EUTMR in conjunction with Article 7(1)(i) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant’s first submissions

 The applicant is the International Red Cross Society of the Federal Republic of Germany. Articles 38, 44 and 53 of the First Geneva Convention exclusively entitle it to use the emblem and the name ‘Red Cross’ in the Federal Republic of Germany.

 The protection of the Red Cross in accordance with Articles 38, 44, 53 and 54 of the First Geneva Convention became part of German federal law by the Law on the Accession of the Federal Republic of Germany to the four Geneva Red Cross Conventions of 12/08/1949 of 21/08/1954. The German Red Cross was recognised in the Federal Republic of Germany after the Second World War by decision of the Federal Government of 26/02/1951.

 Under the contested mark the proprietor sells CBD oils in various strengths at different prices on its website http://www.medicancampus.com/en/.

 The proprietor has not been authorised by the applicant or any other Red Cross Society to use the Red Cross emblem.

 Under Article 7(1)(i) EUTMR trade marks are not to be registered if they contain badges, emblems and escutcheons which are of particular public interest and are not covered by Article 6ter of the Paris Convention (PC), unless the competent authorities have given their consent to their registration. Article 7(1)(i) EUTMR does not contain a definition of symbols of ‘particular public interest’. However, this has been defined by courts to the extent that a ‘particular public interest’ exists if the emblem has a special connection to one of the activities of an international intergovernmental organisation (10/07/2013, T‑3/12, Member of €e euro experts, EU:T:2013:364, § 44).

 These protected symbols include, in particular, symbols protected under the Geneva Conventions and their Additional Protocols (Guidelines, Part B, Section 4, Chapter 9, 3.2). One of the symbols protected under the Geneva Conventions is the emblem of the Red Cross which is depicted as a red cross on a white background: .

 According to the Office’s Guidelines, Article 7(1)(i) EUTMR applies where the trade mark is liable to mislead the public as to the existence of a link between the proprietor of the trade mark and the entity to which the abovementioned symbols refer. In other words, the protection afforded by Article 7(1)(i) EUTMR is conditional on a link between the mark and the symbol. This is the case if the European Union trade mark contains an identical reproduction or a ‘heraldic imitation’ of the protected symbol.

 The Red Cross emblem protected by Article 7(1)(i) EUTMR consists of a red cross with arms of equal length on a white background. The EUTM contains both a figurative element and the verbal element ‘MEDICAN CAMPUS’. The figurative element consists of a red cross with arms of equal length with a small white hexagon in the centre containing a black droplet that looks like a stylised drop of blood. The element of the red cross is easily discernible within the EUTM, being positioned next to the verbal element ‘MEDICAN CAMPUS’. Bearing in mind that the proprietor offers medical products in Class 5, the verbal element ‘MEDICAN CAMPUS’ will be perceived as descriptive in relation to the goods at issue. Therefore, the relevant public’s attention will be focused on the red cross element. Moreover, it is irrelevant whether or not the verbal element is regarded as merely descriptive, since the Office’s Guidelines assume that Article 7(1)(i) EUTMR is infringed even if the EU trade mark merely contains one of the protected emblems. It does not have to consist exclusively of the symbol (23/12/2016, C‑11818).

 The applicant provides a number of examples from the Office’s Guidelines. The EUTM contains a depiction of the Red Cross protected by the Geneva Convention and, most importantly, the red cross in the EUTM is of an identical colour and shape (i.e. a red cross with arms of equal length). The only difference is the hexagon in the centre that contains a black droplet. In similar cases, German courts have consistently come to the conclusion that minor variations in the depiction of the Red Cross do not preclude a finding of similarity between the signs concerned. The applicant proceeds to give a number of cases decided by German Courts as examples.

 Finally, it must be assumed from experience that the public does not regularly perceive and compare the signs in question at the same time, but rather gains its perception on the basis of their imperfect recollection. However, similar features tend to stand out more than differences, so the differences are less important than the similarities between two signs. The slight differences between the signs are therefore not sufficient to rule out the possibility that the symbols are identical or at least highly similar. Therefore, the EUTM proprietor’s sign is identical or at least highly similar to that of the applicant.

To support its arguments the applicant filed the following enclosures:

1. database excerpt from e-search of EUTM 18 107 012;

2. decision of the Higher District Court of Cologne (6 W 101/08) and partial translation thereof;

3. decision of the District Court of Hamburg (315 0 247/06) and partial translation thereof;

4. decision of the District Court of Hamburg (315 0 570/14) and partial translation thereof;

5. decision of the District Court of Hamburg (312 0 497/07) and partial translation thereof.

The EUTM proprietor’s response

 The applicant states that the EUTM is a heraldic imitation of the protected Red Cross design, which consists of a red cross with arms of equal length on a white background. However, a link to this symbol cannot be established. The protection granted to emblems covered by Article 7(1)(i) EUTMR is intended to be applied only when the trade mark that includes the emblem, taken as a whole, is likely to mislead the public as to a link between the proprietor or user of the trade mark, on the one hand, and the authority to which the emblem in question relates, on the other (10/07/2013, T‑3/12, Member of €e euro experts, EU:T:2013:364, § 40). When considering whether the relevant public will be misled, a global assessment of the sign in question is required. The sign’s other elements may mean that, taken as a whole, it is not of such a nature as to suggest to the public that a connection exists between the proprietor or user of the sign and the international intergovernmental organisation that uses the included emblem, or to mislead the public in this respect (15/01/2013, T‑413/11, European Driveshaft Services, EU:T:2013:12, § 59).

 The relevant public needs to believe that a connection exists between the EUTM proprietor and the authority to which the emblem in question relates. However, the relevant public will have a high degree of attention and, therefore, will spot deviations between the trade mark and the Red Cross symbol more easily. Consequently, they will discern that there is no link between the EUTM proprietor and the authority to which the Red Cross emblem relates.

 The EUTM has sufficient distinctive character and is not descriptive in relation to the goods at issue, for reasons that will be explained later in this decision. Also, in contrast to the mark’s unique verbal element, the cross is a popular visual symbol with many uses. Concerning the use of crosses, the Federal Patent Court stated the following.

It cannot be forgotten that the cross, […], has numerous meanings in different contexts. The primary meaning of the cross is the main symbol of Christianity. It is also a symbol for help or assistance in the health care sector and is regularly found in black and white or in various colours in connection with first-aid care, hospitals and pharmacies. Finally, it is the mathematical symbol for plus and is often used when praising goods and services as an indication of ‘more’.

(Federal Patent Court, Decision of 18/09/2014, 30 W (Pat) 546/12, § 40-41, Medipresse).

When considering if the symbol in the contested trade mark is a heraldic imitation of the Red Cross, any deviations from the specific design need to be given more weight, since the cross is such a recognisable symbol for healthcare products and services.

 The judgments cited by the applicant are irrelevant in these proceedings. The European Union trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it, which applies independently of any national system. Consequently, the EUTM must be assessed on the basis of relevant European Union rules only, and national decisions can under no circumstances call into question the legality of the contested registration (25/10/2007, C‑238/06 P, Plastikflaschenform, EU:C:2007:635, § 65-66). Additionally, the sign in question is quite different from all the previous trade marks cited. In those, the red cross was clearly visible and not altered, remaining as the iconic red cross on a white background. The only alterations to the red cross in those trade marks were the addition of symbols or text on top of or crossing the red cross. In the case at issue, a significant adjustment to a normal cross has been made by removing a large part of its centre and adding a new visual element. Overall, this gives an entirely different visual impression.

The applicant’s reply

 Contrary to what the proprietor claims in its observations, the EUTM must be excluded from protection because it notably contains a depiction of the Red Cross symbol, which is of particular public interest in line with Article 7(1)(i) EUTMR. Most importantly, the EUTM is likely to suggest to the relevant public that there is a connection between the EUTM proprietor and the applicant or mislead the public as to the existence of such a connection.

 As far as pharmaceutical goods are concerned, the relevant public’s degree of attention is relatively high. However, it should be noted that the proprietor does not only claim protection for pharmaceutical preparations. It also claims protection for a variety of goods, namely dietary and nutritional supplements; dietetic and nutritional substances; dietetic foodstuffs and dietetic substances adapted for medical or veterinary use; herbal medicine; nutraceuticals for therapeutic purposes; medicinal oils; medicinal oils based on CBD, THC and other cannabinoids, which are goods that do not qualify as pharmaceutical products. Therefore, it is not admissible to rely on legal principles developed only in relation to pharmaceutical products. On the contrary, it is consistent case-law that the level of attention for certain nutritional supplements, for example, is rather low, given that they are inexpensive and bought frequently (28/09/2015, B 2 425 380). Most of the goods for which the applicant claims protection are inexpensive, for example nutritional supplements, which can be bought for less than EUR 1:

.

In fact, dietetic and nutritional substances are very often sold as, or next to, normal foodstuffs in a normal supermarket. The products can also be purchased online through online supermarkets. It is not necessary to consult a medical professional in advance. In fact, it has become a marketing strategy to underline that one’s product contains, for example, added vitamins, minerals, or trace elements, to increase sales. The end consumer will clearly not fear that a vitamin supplement could negatively affect health, especially as the products are specifically marketed to convey the message that, for example, protein and vitamins are beneficial for one’s health. In summary, the public’s level of attention in this case will not be significantly increased. Moreover, a high degree of attention does not automatically lead to a finding of no likelihood of confusion. All the other factors have to be taken into account (interdependence principle) (Guidelines, Part C, Opposition, Section 2, Double Identity and Likelihood of Confusion, Chapter 7, Global Assessment). For example, when there is a strong likelihood of confusion created by other factors, such as identity or close overall similarity of the marks and the identity of the goods, the attention of the relevant public alone cannot be relied upon to prevent confusion (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 53-56; 06/09/2010, R 1419/2009‑4, Hasi / Hasen IMMOBILIEN).

 The EUTM proprietor states that it does not contest the fact that the symbols protected under Article 7(1)(i) EUTMR include, in particular, symbols protected under the Geneva Conventions and their Additional Protocols (Guidelines, Part B, Section 4, Chapter 9, 3.2). One of the symbols protected under the Geneva Conventions is the emblem of the Red Cross, which is depicted as a red cross on a white background: . More specifically, the Red Cross is defined as a protected symbol in Article 7 of the 1864 Geneva Convention, Chapter VII (‘The distinctive emblem’) and Article 38 of the 1949 Geneva Convention (‘For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field’). As specified by the Geneva Conventions, this emblem may only be used to denote the following:

o facilities for the care of injured and sick armed forces members;

o armed forces medical personnel and equipment;

o military chaplains;

o International Red Cross and Red Crescent Movement organisations such as the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC), and the 190 national Red Cross and Red Crescent societies.

 To the extent that the EUTM proprietor argues that the Red Cross symbol is ‘also a symbol for help or assistance in the health care sector’, the applicant points to the explanatory memorandum of the German Red Cross Law issued by the German Parliament (annex 1). The applicant highlights another decision, of the Higher Regional District Court of Nuremberg (annex 2).

 Contrary to the proprietor’s assertions, the registration of the EUTM violates Article 7(1)(i) EUTMR. This Article covers full or partial reproduction of protected symbols in a trade mark, as well as their heraldic imitation (Guidelines, Part B, Section 4, Chapter 9, 3.1). The figurative element of the EUTM is identical, or at least highly similar, to the Red Cross emblem. The Red Cross is immediately recognisable.

 The contested EUTM clearly contains a red cross, which – just like the Red Cross symbol – has arms of equal length: This is not changed by the minor deviations in the EUTM, namely the hexagon and black droplet and the additional verbal element.

 Against this background, it must be held that the EUTM clearly contains a depiction of the protected Red Cross symbol as a clearly discernible element. Furthermore, the proprietor did not make any effort to obtain the applicant’s permission to use the sign in advance, which may not have been granted. Therefore, the proprietor was not granted authorisation to register a trade mark containing the Red Cross emblem. Moreover, the EUTM is likely to suggest to the relevant public that there is a connection between the EUTM proprietor and the Red Cross Society, or to mislead the public as to the existence of such a connection.

In support of its arguments the applicant filed the following documents:

 explanatory memorandum of the German Red Cross Law issued by the German Parliament;

 decision of the Higher Regional District Court of Nuremberg.

ABSOLUTE GROUNDS FOR INVALIDITY — ARTICLE 59(1)(a) EUTMR IN CONJUNCTION WITH ARTICLE 7 EUTMR

According to Article 59(1)(a) and Article 59(3) EUTMR, a European Union trade mark will be declared invalid on application to the Office, where it has been registered contrary to the provisions of Article 7 EUTMR. Where the grounds for invalidity apply for only some of the goods or services for which the European Union trade mark is registered, the latter will be declared invalid only for those goods or services.

Furthermore, it follows from Article 7(2) EUTMR that Article 7(1) EUTMR applies notwithstanding that the grounds of non-registrability obtain in only part of the Union.

The assessment of the absolute grounds of refusal pursuant to Article 7 EUTMR were the subject of the ex officio examination prior to registration of the EUTM. The Cancellation Division, in principle, will not carry out its own research but will confine itself to analysing the facts and arguments submitted by the parties to the invalidity proceedings.

However, restricting the Cancellation Division to an examination of the facts expressly submitted does not preclude it from also taking into consideration facts that are well known, that is, that are likely to be known by anyone or can be learned from generally accessible sources.

Although these facts and arguments must date from the period when the European Union trade mark application was filed, facts relating to a subsequent period might also allow conclusions to be drawn regarding the situation at the time of filing (23/04/2010, C‑332/09 P, Flugbörse, EU:C:2010:225, § 41, 43). The filing date of the contested mark is 13/08/2019.

On the breach of Article 7(1)(i) EUTMR

Article 7(1)(i) EUTMR applies to all other badges, emblems or escutcheons that: i) have not been communicated in accordance with Article 6ter(3)(a) PC, regardless of whether they are the emblems of a state or international intergovernmental organisation within the meaning of Article 6ter(1)(a) or (b) PC, or of public bodies or administrations other than those covered by Article 6ter PC, such as provinces or municipalities and ii) are of particular public interest, unless the competent authority has consented to their registration.

Article 7(1)(i) EUTMR does not define symbols of ‘particular public interest’. The nature of these symbols could vary and could include, for example, symbols of public bodies or administrations, such as provinces or municipalities. In any case, the ‘particular public interest’ involved must be reflected in a public document, for example a national or international legal instrument, regulation or other normative act.

The General Court stated that a ‘particular public interest’ existed when the emblem had a particular link with one of the activities carried out by an international intergovernmental organisation (10/07/2013, T‑3/12, Member of €e euro experts, EU:T:2013:364, § 44). In particular, the Court specified that Article 7(1)(i) EUTMR also applied when the emblem merely related to one of the areas of activity of the European Union, even if that activity concerned only certain EU Member States (10/07/2013, T‑3/12, Member of €e euro experts, EU:T:2013:364, § 45-46). This confirms that the protection afforded by Article 7(1)(i) EUTMR also applies to symbols that are of particular public interest in only a single Member State or part thereof (Article 7(2) EUTMR).

According to case-law, Article 7(1)(i) and (h) EUTMR both have a similar scope of application and grant equivalent levels of protection. Therefore, Article 7(1)(i) EUTMR covers identical reproduction (full or partial) in a trade mark of the abovementioned symbols, as well as their heraldic imitations.

Following the same line of reasoning, Article 7(1)(i) EUTMR applies where the mark is liable to mislead the public as to the existence of a connection between the owner of the trade mark and the body to which the abovementioned symbols refer. In other words, the protection afforded by Article 7(1)(i) EUTMR is conditional on a link between the mark and the symbol (no absolute protection). Otherwise, trade marks to which Article 7(1)(i) EUTMR applies would obtain broader protection than under Article 7(1)(h) EUTMR (10/07/2013, T‑3/12, Member of €e euro experts, EU:T:2013:364).

The applicant claims that it is the International Red Cross Society of the Federal Republic of Germany and, under Articles 38, 44 and 53 of the First Geneva Convention, is exclusively entitled to use the emblem and the name ‘Red Cross’ in the Federal Republic of Germany. It adds that the proprietor has not been authorised by the applicant or any other International Red Cross Society to use the Red Cross emblem. The proprietor itself does not refute this latter assertion.

The contested mark was registered as to cover pharmaceutical preparations for human use; dietary and nutritional supplements; dietetic and nutritional substances; dietetic foodstuffs and dietetic substances adapted for medical or veterinary use; herbal medicine; nutraceuticals for therapeutic purposes; medicinal oils; medicinal oils based on CBD, THC and other cannabinoids.

The relevant public is the general public and professionals in the medical field throughout the European Union. The level of attention in relation to pharmaceuticals is relatively high, whether or not issued on prescription (15/12/2010, T‑331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T‑288/08, Zydus, EU:T:2012:124, § 36 and the case-law therein). In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also show a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health. The same can be applied to dietetic substances adapted for medical or veterinary use; herbal medicine; nutraceuticals for therapeutic purposes; medicinal oils; medicinal oils based on CBD, THC and other cannabinoids. On the other hand, as the applicant rightly points out, the level of attention for goods such as dietary and nutritional supplements; dietetic and nutritional substances; dietetic foodstuffs might well be only average, depending on the exact nature, purpose and price of these goods.

One of the symbols protected under the Geneva Conventions and their Additional Protocols is the Red Cross, depicted as (https://www.icrc.org/en/war-and-law/emblem).

As mentioned above, the protection afforded by Article 7(1)(i) EUTMR is conditional on the public making a link between the contested mark and the protected symbol, as there cannot be an absolute protection.

The EUTM proprietor contends that the presence in the mark of other elements along with the cross will prevent this link. The verbal component ‘MEDICAN’, it argues, is a fanciful word, the product of conjoining ‘MEDICAL’ and ‘CANNABIS’. The component ‘CAMPUS’ has no relation to the protected goods in Class 5, and therefore has a normal degree of distinctiveness. The cross is a popular visual symbol with many uses, inter alia, a symbol for help or assistance in the healthcare sector. Therefore, any deviations from the specific design need to be given more weight. By altering the usual depiction of the cross by removing a hexagonal shape in the centre and adding a droplet shape, a new and distinctive symbol is created. This will be easily remembered due to its unique form. The EUTM proprietor argues that, as the droplet is shown in black, in connection with medicinal oils, medicinal oils based on CBD, THC and other cannabinoids it will be perceived by the consumers as a drop of oil and not a drop of blood. It concludes that it is very unlikely that the average consumer will link the protected Red Cross symbol with a sign that contains the very different elements described above.

The Cancellation Division finds that, given the presence of the cross in the EUTM, and contrary to what the EUTM proprietor argues, the expression ‘MEDICAN’, in connection with goods in Class 5, will necessarily be viewed by the consumers in the light of activities that could be carried out by organisations permitted to use the Red Cross symbol. Indeed, as the EUTM proprietor itself claims, and as the Court has confirmed, ‘MEDI’ will be understood as an abbreviation of ‘medicine’ and as referring to pharmaceuticals or to the field of medicine or health (12/07/2012, T‑470/09, Medi, EU:T:2012:369, § 25; 8/07/2020, T‑21/19, mediFLEX easySTEP (fig.) / Stepeasy (fig.), EU:T:2020:310, § 72). Furthermore, the presence of the term ‘CAN’, if associated to products in Class 5 that contain ‘cannabis’ and are intended to improve the health of consumers, will only reinforce this meaning, as the whole expression will be interpreted as ‘medical cannabis’. Account must also be taken of the visual impact of this component in the whole of the sign, given that it is larger than ‘CAMPUS’. At any rate, irrespective of its size, as the EUTM proprietor itself explains, ‘CAMPUS’ means ‘the grounds and buildings of a university or college (information extracted from Oxford Online Dictionary on 19/02/2021 at https://www.lexico.com/en/definition/campus). It is feasible that, as the applicant points out, it might be interpreted, in connection with ‘medicine’ and ‘cannabis’, as a place where medical research is carried out.

The EUTM proprietor lays great weight on the elements of the hexagonal shape in the centre of the cross and the droplet within it. However, the Cancellation Division is of the opinion that the hexagon will be perceived merely as a background for the droplet. Therefore, it has no semantic power in itself and no impact on differentiating between the signs. The fact that the droplet is shown in black does not preclude the possibility that the consumers will perceive it as a drop of blood. Even if the consumers were to interpret it as a drop of oil, it would simply refer directly to those goods in the specification that are, or contain, oil (medicinal oils; medicinal oils based on CBD, THC and other cannabinoids) or can be administered in drops (the rest of the goods for which the mark has been registered, namely pharmaceutical preparations for human use; dietary and nutritional supplements; dietetic and nutritional substances; dietetic foodstuffs and dietetic substances adapted for medical or veterinary use; herbal medicine; nutraceuticals for therapeutic purposes). It follows that this element in the shape of a droplet is not distinctive.

Consequently, none of the elements that appear in the EUTM establish a differentiating factor in relation to the ‘Red Cross’ symbol (depicted in exactly the same shape and colour in the sign protected by the Geneva Convention) to the extent that the link between the contested mark and the symbol will be prevented; therefore, the mark is liable to mislead the public as to the existence of a connection between the owner of the contested trade mark and the body to which the abovementioned symbols refer.

The EUTM proprietor argues that the level of attention of the relevant public in relation to the goods is high, which will help prevent the public from being misled. However, as mentioned above, this high level of attention can only be acknowledged for pharmaceutical preparations for human use and not for the rest of the goods protected by the mark. Furthermore, rather than preventing a link in the mind of the consumers, this will help to provoke it, given that consumers will think that the goods are offered under the auspices of the Red Cross.

For all these reasons, the contested mark is likely to mislead the public as to a link between the proprietor or user of the trade mark and the authority to which the emblem in question relates. In this light, the Cancellation Division concludes that the application filed under Article 59(1)(a) EUTMR in conjunction with Article 7(1)(i) EUTMR is totally successful and the European Union trade mark should be declared invalid for all the contested goods.

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

The Cancellation Division

Robert MULAC

María Belén IBARRA DE DIEGO

Anne-Lee KRISTENSEN

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.