CANCELLATION No 18 862 C (REVOCATION)

Kingsley Beverage Fzco, PO box # 17096 Jebel Ali Free Zone, Dubai, United Arab Emirates (applicant), represented by Maguire Boss, 24 East Street, St. Ives, Cambridge PE27 5PD, United Kingdom (professional representative)

a g a i n s t

St Helier Beverage Company (SHBC) Jersey Limited, Nautilus House, La Cour des Casernes, St Helier JE1 3NH, Jersey (EUTM proprietor), represented by HGF Limited, 4th Floor, Merchant Exchange Building, 17-19 Whitworth Street West, Manchester M1 5WG, United Kingdom (professional representative).

On 30/04/2019, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 11 055 712 are revoked as from 27/12/2017 for some of the contested goods, namely:

Class 32: Non alcoholic beverages; energy drinks, beer, malt beer, wheat beer, porter, ale, stout and lager; mineral water and aerated waters; fruit drinks and fruit juices; syrups, essences and other preparations for making beverages.

Class 33: Alcoholic beverages; vodka based alcoholic beverages; wine based alcoholic beverages; wines, spirits and liqueurs; alcoholic preparations for making beverages; wine-based cocktails and aperitifs; beverages containing wine, vodka.

3. The European Union trade mark remains registered for all the remaining goods, namely:

Class 33: Alcoholic energy drinks; spirit-based cocktails and aperitifs; beverages containing spirits; alcoholic mixed beverages.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 11 055 712 ‘DRAGON SOOP’ (word mark), (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 32: Non alcoholic beverages; energy drinks, beer, malt beer, wheat beer, porter, ale, stout and lager; mineral water and aerated waters; fruit drinks and fruit juices; syrups, essences and other preparations for making beverages.

Class 33: Alcoholic beverages; alcoholic energy drinks; vodka based alcoholic beverages; wine based alcoholic beverages; wines, spirits and liqueurs; alcoholic preparations for making beverages; spirit or wine-based cocktails and aperitifs; beverages containing wine, vodka or spirits; alcoholic mixed beverages.

The applicant invoked Article 58(1)(a) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the EUTM has not been put to genuine use for a continuous period of five years and that therefore, it must be revoked in its entirety.

The EUTM proprietor argues that it has used the sign extensively in relation to the goods in Class 33 and submits evidence of use of the EUTM which will be listed in detail below. The EUTM proprietor argues that the goods are alcoholic energy drinks made from Schnapps which is in turn made from fruit brandies or liqueurs, and that brandy is a form of wine, so the evidence shows use of all of the goods in Class 33. It admits that the evidence does not show use for goods which are strictly identical to all of the goods for which the EUTM is registered but the remaining goods are not, in essence, different and do belong to the single group of drinks and beverages, so no subcategories need to be established, nor should the EUTM be revoked for any of these goods. The EUTM proprietor puts forward that it has a legitimate interest in expanding its range of goods to cover the types of beverages included in the specification of the EUTM and that all of the registered goods fall into the same category drinks or beverages. The EUTM proprietor also claims that the evidence is sufficient to prove all of the factors of place, time, nature and extent of use. Therefore, it requests the application for revocation to be rejected.

The applicant contests the evidence of use submitted and claims that it is insufficient to prove the use of the EUTM. Moreover, the applicant points out that the proprietor only claims to have used the goods in Class 33 and not in Class 32 and has not submitted any evidence in relation to Class 32 either, so the EUTM must be at least revoked for this Class. The applicant makes various claims about the length, composition, legibility and confusing nature of the evidence submitted by the proprietor and denies that it shows genuine use of the EUTM. The applicant also states that the evidence shows a use of the sign which alters the distinctive character of the sign as registered, in particular, the large letter ‘A’ breaks up the sign so that consumers will read it as ‘Dr Agon Soop’ and associate it with a doctor, and compares this to the Dr Pepper drink. Therefore, the applicant claims that the proprietor has not shown use of the sign as registered. Finally, the applicant argues that the evidence shows use of a schnapps-based cocktail, as a cocktail is any drink with a spirit base, and as schnapps is a spirit and the proprietor has not submitted proof of anything else. However, it points out that due to the failure of the proprietor to prove other factors of use, the EUTM must be entirely revoked.

The EUTM proprietor contests the applicant’s arguments and insists that the evidence is sufficient to show use of the EUTM. It denies that the sign as used alters the distinctive character of the sign as registered or that consumers would view the sign as ‘Dr Agon Soop’.

GROUNDS FOR THE DECISION

According to Article 58(1)(a) EUTMR, the rights of the proprietor of the European Union trade mark will be revoked on application to the Office, if, within a continuous period of five years, the trade mark has not been put to genuine use in the Union for the goods or services for which it is registered, and there are no proper reasons for non-use.

Genuine use of a trade mark exists where the mark 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 requires actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, in particular § 35-37, 43).

When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).

According to Article 19(1) EUTMDR in conjunction with Article 10(3) EUTMDR, the indications and evidence of use must establish the place, time, extent and nature of use of the contested trade mark for the goods and/or services for which it is registered.

In revocation proceedings based on the grounds of non-use, the burden of proof lies with the EUTM proprietor as the applicant cannot be expected to prove a negative fact, namely that the mark has not been used during a continuous period of five years. Therefore, it is the EUTM proprietor who must prove genuine use within the European Union, or submit proper reasons for non‑use.

In the present case, the EUTM was registered on 14/12/2012. The revocation request was filed on 27/12/2017. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request. The EUTM proprietor had to prove genuine use of the contested EUTM during the five-year period preceding the date of the revocation request, that is, from 27/12/2012 to 26/12/2017 inclusive, for the contested goods listed in the section ‘Reasons’ above.

On 27/03/2018 the EUTM proprietor submitted evidence as proof of use.

The evidence to be taken into account is the following:

• Witness Statement of Paul Burton, Director of the EUTM proprietor and also of Corinthians Brands (CBL) Ltd which is owned by the proprietor and which has express permission of the proprietor to use the EUTM. He states that ‘DRAGON SOOP’ is an alcoholic energy drink which was launched in 2011 and is sold extensively throughout the UK and also online and this use has been continuous since that time. It provides turnover figures in relation to the EUTM from 2011-2017 which range from 535,944 GBP (2011) to 5,945,903 GBP.(2017) for a 500ml can of their goods and he also provides turnover figures for the smaller 250ml can from 2012 to 2014 ranging from 42,558 GPB to 201,006 GPB. He also provides marketing budget figures for the years 2014-2017 which ranges from 90,755 GBP (2015) to 170,898 GBP (2017).

• Exhibit PB1: A redacted copy of the agreement signed between the proprietor and Corinthian Brands (CBL) Limited dated 10/12/2014.

• Exhibits PB2-PB18 and PB20: Screenshots from numerous websites and the wayback machine to show use of the EUTM in relation to the goods.

• Exhibit PB19 and PB20: A collection of independent articles and publications featuring ‘DRAGON SOOP’ and screenshots showing different websites where ‘DRAGON SOOP’ products have featured. One of the articles dated April 2016 from the Scottish Grocer lists ‘DRAGON SOOP’ as the second most popular drinks brand.

• Exhibit PB21: A collection of photographs of ‘DRAGON SOOP’ branded goods in local stores and trade shows.

• Exhibits PB22 and PB24: A selection of brochures, catalogues and flyers in which the ‘DRAGON SOOP’ goods were advertised.

• Exhibit PB23: A selection of website printouts for events which ‘DRAGON SOOP’ has sponsored in the UK.

• Exhibit PB25: A collection of documents from the graphic designer used to create the ‘DRAGON SOOP’ promotional materials which were created in 2011.

• Exhibit PB26-PB30: Copies of invoices for the sale of ‘DRAGON SOOP’ goods dated between 2013-2017 and the ‘DRAGON SOOP’ mark is visible in the product description of each invoice. The invoices are billed to customers in the UK.

• Exhibits PB31-PB32: Extracts from third party retailers offering ‘DRAGON SOOP’ goods for sale and information concerning these retailers and how they also deliver outside of the UK.

• Exhibits PB33-PB34: Photographs of promotional materials used when promoting the ‘DRAGON SOOP’ brand and a brand book with details of the different brands in use by Corinthian Brands Limited which includes the ‘DRAGON SOOP’ brand.

Preliminary remarks

The applicant in its arguments makes various claims about the length, composition, legibility and confusing nature of the evidence submitted by the proprietor and denies that it shows genuine use of the EUTM. In particular it points out that the EUIPO recommends that evidence does not exceed 110 pages and argues that the voluminous evidence submitted was intended to divert the attention from the failure of the evidence to show genuine use of the sign.

The Cancellation Division notes that the parties are advised not to exceed 110 pages, however, they are not prohibited from submitting more. The fact that the proprietor has submitted a large amount of evidence does not automatically mean that it is trying to divert attention away from a failure to show genuine use, but merely that it is attempting to prove the use of its mark. In the present case, the applicant’s claim is simply an assertion unsupported by specific evidence or arguments that might persuade the Cancellation Division that the filing of a large quantity of documents by the EUTM proprietor was an act of misdirection, motivated by a desire to mask the inadequacy of the evidence. Therefore, this accusation from the applicant must be rejected. The applicant also comments about the legibility of part of the evidence, namely PB10 and or documents which are undated. The Cancellation Division does not see the necessity to re-open the proceedings to resubmit one exhibit and therefore will not take this exhibit into consideration, as this is the best light for the applicant and does not affect the outcome of the present decision since the exhibit does not prove the use of any additional goods for which the EUTM is registered and therefore neither party is prejudiced.

Assessment of genuine use – factors

Time of use

The evidence must show genuine use of the European Union trade mark within the relevant period.

Most of the evidence is dated within the relevant period. Therefore, the evidence of use filed by the EUTM proprietor contains sufficient indications concerning the time of use.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

The invoices, catalogues, brochures, fliers, sponsorship evidence, and website extracts show that the place of use is the United Kingdom. This can be inferred from the language of the documents (English), the currency mentioned (GBP) and some addresses in the United Kingdom. Therefore, the evidence relates to the relevant territory.

Nature of use: use as a trade mark

Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.

The evidence clearly shows that the EUTM is being used as a trade mark to indicate the origin of the goods. Therefore, there are sufficient indications of use as a trade mark.

Nature of use: use of the mark as registered

‘Nature of use’ in the context of Article 10(3) EUTMDR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The invoices, articles and some of the website extracts show that the mark has been used as registered, namely as the word mark ‘DRAGON SOOP’.

However, much of the evidence shows use of the figurative sign shown below:

The purpose of Article 18(1)(a) EUTMR, which avoids imposing strict conformity between the form in which the trade mark is used and the form in which it was registered, is to allow its proprietor, when exploiting it commercially, to vary it in such a way that, without altering its distinctive character, enables it to be better adapted to the marketing and promotion requirements of the goods or services concerned (23/02/2006, T‑194/03, Bainbridge, EU:T:2006:65, § 50).

It is appropriate to consider whether the form in which the contested trade mark is used contains differences which affect its distinctive character or whether, despite the differences, the mark used and the contested EUTM have the same distinctive character. First, the distinctive character of the contested EUTM must be clarified. Then, it must be considered whether or not the mark as used alters this distinctive character.

Assessment of the distinctive or dominant character of one or more components of a complex trade mark must be based on the intrinsic qualities of each of those components, as well as on the relative position of the different components within the trade mark (24/11/2005, T‑135/04, Online Bus, EU:T:2005:419, § 36).

The sign as used in some of the Exhibits shows the term ‘DRAGON SOOP’ depicted in a rather standard white typeface with the exception of the letter ‘A’ which is represented in a larger letter, and the word ‘SOOP’ is written below the letters ‘GON’ of the word ‘DRAGON’ in a slightly different but yet again, rather standard typeface. The term ‘DRAGON SOOP’ does not have any meaning in relation to the goods and as such is distinctive.

The applicant argues that the large letter ‘A’ breaks up the sign so that consumers will read it as ‘Dr Agon Soop’ and associate it with a doctor, and compares this to the Dr Pepper drink. However, the Cancellation Division cannot agree with this assertion. The fact that a prominent dragon is featured on the can beside the word element more than reinforces the meaning of the word ‘DRAGON’ and the stylised typeface does not lead the consumer into seeing the word as ‘Dr Agon Soop’. Therefore, this argument must be set aside. At the top of the sign as used can be perceived, in much smaller letters the term ‘CAFFEINATED ALCOHOLIC BEVERAGE’ which is descriptive of the type of goods being offered and as such is non-distinctive. On some of the cans there are further elements like ‘SOUR APPLE’, ‘RED COLA’, ‘TAURINE’, ‘500ml’ etc which are all further descriptive elements indicating the type of flavour, ingredients, or the size of the recipient and as such are also non-distinctive and do not alter the distinctive character of the sign as registered.

The Cancellation Division considers that the evidence of use of the sign in this figurative layout does not alter the distinctive character of the sign as registered. The sign used shows use of the mark as registered or in a form essentially the same as that registered and, therefore, constitutes use of the contested EUTM under Article 18 EUTMR.

Extent of use

Concerning extent of use, it is settled case-law that account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (e.g. 08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The Court has held that ‘[u]se of the mark need not … always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market’ (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 39).

It is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not. A de minimis rule cannot therefore be laid down. When it serves a real commercial purpose, even minimal use of the mark can be sufficient to establish genuine use (27/01/2004, C‑259/02, Laboratoire de la mer, EU:C:2004:50, § 25, 27).

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 evidence submitted by the EUTM proprietor in order to prove genuine use of the earlier EUTM relates exclusively to the United Kingdom. As stated above, the territorial scope of the use is only one of several factors to be assessed in the determination of whether the use is genuine or not.

However, the EUTM proprietor has submitted over 350 invoices billed to customers in the UK for its goods for substantial amounts, and dated throughout a large part of the relevant time period. Moreover, these voluminous invoices serve to back up the claimed turnover figures made under the brand by the Director of the EUTM proprietor in his Witness Statement which run from hundreds of thousands to millions of GBP throughout the relevant period. Moreover, the advertising and sponsorship activities submitted also confirm the marketing budget figures provided in said Statement. The marketing on social media and the figures provided as to the outreach of the advertisements to customers in the UK also go towards showing the extent of reach of the EUTM proprietor’s advertising of the brand. Therefore, the EUTM proprietor has submitted indications of the extent of use of the EUTM, however, only in relation to some of the goods. This will be dealt with more extensively in the following section of the present decision.

Use in relation to the registered goods and services

Article 58(1)(a) EUTMR and Article 10(3) EUTMDR require that the EUTM proprietor proves genuine use for the contested goods and services for which the European Union trade mark is registered.

The contested EUTM is registered for the following goods:

Class 32: Non alcoholic beverages; energy drinks, beer, malt beer, wheat beer, porter, ale, stout and lager; mineral water and aerated waters; fruit drinks and fruit juices; syrups, essences and other preparations for making beverages.

Class 33: Alcoholic beverages; alcoholic energy drinks; vodka based alcoholic beverages; wine based alcoholic beverages; wines, spirits and liqueurs; alcoholic preparations for making beverages; spirit or wine-based cocktails and aperitifs; beverages containing wine, vodka or spirits; alcoholic mixed beverages.

However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the goods for which it is registered.

According to Article 58(2) EUTMR, where there are grounds for revocation in respect of only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

According to case-law, when applying the abovementioned provision the following should be considered:

… if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories.

[Furthermore,] allowing an earlier trade mark to be deemed to be registered only in relation to the part of the goods or services in respect of which genuine use has been established … must be reconciled with the legitimate interest of the proprietor in being able in the future to extend his range of goods or services, within the confines of the terms describing the goods or services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288)

Since consumers are searching primarily for a product or service to meet their specific needs, the purpose of the product or service in question is vital for determining their choice. Consequently, it is of fundamental importance when defining a subcategory of goods or services (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 29).

In the present case, the evidence shows genuine use of the trade mark for alcoholic energy drinks made of schnaps. Only Exhibit PB4 appears to show an energy drink containing vodka, however, there is no further evidence to prove that any actual sales were made of these goods. Moreover, these advertisements were taken from the proprietor’s website and no information has been provided as to how many actual visits the site were received, whether any visits were made from the public in the relevant territory or whether these visits ended in the sale of any goods, and if so, how many. None of the other exhibits appear to contain references to vodka based drinks and therefore, the evidence is insufficient to show use in relation to vodka based drinks. However, the EUTM proprietor argues that it has a legitimate interest in expanding its range of goods to cover the types of beverages included in the specification of the EUTM and that all of the registered goods fall into the same category drinks or beverages.

Alcoholic energy drinks made of schnaps is a type of drink would form a sub-category of the goods alcoholic energy drinks; spirit based cocktails and aperitifs; beverages containing spirits; alcoholic mixed beverages. However, indeed to limit the goods of the EUTM to these very specific goods made of schnapps would limit the prorpietor from expanding the range of goods in the future to perhaps a different type of spirit like vodka, and consequently, to determine such a narrow category of goods would affect its legitimate interest in extending its range. Therefore, the Cancellation Division deems that use has been shown for the following goods:

Class 33: Alcoholic energy drinks; spirit-based cocktails and aperitifs; beverages containing spirits; alcoholic mixed beverages.

The EUTM proprietor argues that all of its goods are alcoholic energy drinks made from Schnapps, which is in turn made from fruit brandies or liqueurs, and that brandy is a form of wine, so the evidence shows use of all of the goods in Class 33. It admits that the evidence does not show use for goods which are strictly identical to all of the goods for which the EUTM is registered but the remaining goods are not, in essence, different and do belong to the single group of drinks and beverages, so no subcategories need be established, nor should the EUTM be revoked for any of these goods.

However, the EUTM propreitor is under an obligation to prove use of the EUTM for all of the registered goods or provide proper reasons for non-use. The fact that some of these goods are similar is not a valid argument for not using the sign on some of the registered goods, and similarity is not sufficient to prove use. What is important is the actual use shown, and that is specifically for alcoholic energy drinks made from Schnapps. The owners of EUTMs are entitled under the law to a five year period of non-use after registration, but once the five years has elapsed, Article 18 EUTMR provides that has to put the EUTM to genuine use for the registered goods and services. A failure to do so means that the EUTM owner ‘shall be subject to the sanctions provided for in this Regulation, unless there are proper reasons for non-use’. Therefore, the argument of the EUTM proprietor that it has a legitimate interest in exending its range of goods does not allow it to retain registration for goods for which it has shown no use at all. There has been no use shown for vodka or wine based beverages or wines, spirits and liqueurs; alcoholic preparations for making beverages and therefore, the proprietor has failed to prove the use of any of the remaining goods in Class 33.

The EUTM prorpietor only stated that it used the sign in relation to the goods in Class 33 in its arguments and made no mention of Class 32 at any point. Moreover, none of the evidence relates to any of the goods in Class 32. The EUTM propreitor has failed to prove the use of these goods.

Therefore, the Cancellation Division declares the EUTM to be revoked for the remaining goods in Class 33 and for all of the goods in Class 32 for which it is registered.

Overall assessment

In order to examine, in a given case, whether use of the earlier mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 36).

In the present case, the Cancellation Division considers that genuine use of the contested mark has been sufficiently demonstrated for the relevant factors of time, place, nature and extent of use for only some of the contested goods as listed above.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the EUTM for the following goods, for which it must, therefore, be revoked:

Class 32: Non alcoholic beverages; energy drinks, beer, malt beer, wheat beer, porter, ale, stout and lager; mineral water and aerated waters; fruit drinks and fruit juices; syrups, essences and other preparations for making beverages.

Class 33: Alcoholic beverages; vodka based alcoholic beverages; wine based alcoholic beverages; wines, spirits and liqueurs; alcoholic preparations for making beverages; wine-based cocktails and aperitifs; beverages containing wine, vodka.

The EUTM proprietor has proven genuine use for the remaining contested goods; therefore, the application is not successful in this respect.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 27/12/2017.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part 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 Cancellation Division

Rhys MORGAN

Nicole CLARKE

Irina SOTIROVA

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.