OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET

(TRADE MARKS AND DESIGNS)


Opposition Division



OPPOSITION No B 2 277 542


Mc Cain Alimentaire, Zone Industrielle, 62440 Harnes, France (opponent), represented by Cabinet Plasseraud, 31 Rue Des Poissonceaux, 59044 Lille Cedex, France (professional representative)


a g a i n s t


easyGroup Ltd., 10 Ansdell Street, Kensington, London W8 5BN, the United Kingdom (applicant), represented by Kilburn & Strode LLP, 20 Red Lion Street, London WC1R 4PJ, the United Kingdom (professional representative).


On 09/11/2015, the Opposition Division takes the following



DECISION:


1. Opposition No B 2 277 542 is partially upheld, namely for the following contested goods and services:


Class 29: Preserved, frozen, dried and cooked vegetables; prepared meals; snack foods; canned vegetables; soups; potato crisps.

Class 30: Sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes.

Class 31: Fresh vegetables.

Class 35: Retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps.


2. Community trade mark application No 11 949 716 is rejected for all the above goods and services. It may proceed for the remaining goods and services.


3. Each party bears its own costs.



REASONS:


The opponent filed an opposition against some of the goods and services of Community trade mark application No 11 949 716, namely against some of the goods and services in Classes 29, 30, 31, 35. The opposition is based on French trade mark registrations No 97 683 793 and 97 667 496 and international trade mark registration No 678 869 designating Spain and Italy. The opponent invoked Article 8(1)(b) CTMR.



SUBSTANTIATION


According to Article 76(1) CTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.


It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.


According to Rule 19(1) CTMIR, the Office shall give the opposing party the opportunity to present the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.


According to Rule 19(2) CTMIR, within the period referred to above, the opposing party shall also file proof of the existence, validity and scope of protection of his earlier mark or earlier right, as well as evidence proving his entitlement to file the opposition.


In particular, if the opposition is based on a registered trade mark which is not a Community trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered - Rule 19(2)(a)(ii) CTMIR.


In the present case the evidence filed by the opponent with regards to the earlier international trade mark registration No 678 869 consists of an extract from the international register (ROMARIN).


The evidence mentioned above is not sufficient to substantiate the opponent’s earlier trade mark insofar as the Spanish designation is concerned, as it does not contain all the necessary elements, namely list of goods and services. From the evidence submitted by the opponent it can be seen that the earlier international trade mark registration No 678 869 was registered on 28/08/1997. This was followed by a provisional refusal of protection in Spain, then a final decision confirming the refusal of protection, later a statement indicating that the mark is protected for some of the goods and services requested. However, the ROMARIN database extract submitted by the opponent does not specify for which goods and services such protection was granted (see the relevant section by code No. 897 ‘Statement indicating that protection of the mark is protected for some of the goods and services requested’). As this information does not appear in the evidence provided, the Opposition Division can neither deduct nor verify for which goods/services registration was granted in Spain.


According to Rule 20(1) CTMIR, if until expiry of the period referred to in Rule 19(1) CTMIR the opposing party has not proven the existence, validity and scope of protection of his or her earlier mark or earlier right, as well as his or her entitlement to file the opposition, the opposition shall be rejected as unfounded.


The opposition must therefore be rejected as unfounded, as far as it is based on Spanish designation of international trade mark registration No 678 869. The assessment of the opposition will continue on the remaining designation of the abovementioned international registration, namely on the Italian designation.



PROOF OF USE


In accordance with Article 42(2) and (3) CTMR, if the applicant so requests, the opponent shall furnish proof that, during the period of five years preceding the date of publication 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 in respect of which it is registered and which it cites as justification for its opposition, or that there are proper reasons for non-use.


According to the same provision, in the absence of such proof the opposition must be rejected.


The applicant requested that the opponent submit proof of use of all the trade marks on which the opposition is based, i.e. French trade mark registrations No 97 683 793 and 97 667 496 and international trade mark registration No 678 869.


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 publication of the contested application.


The contested application was published on 20/08/2013. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in France, with regards to the French registrations, and in Italy, with regards to the international trade mark registration, from 20/08/2008 to 19/08/2013 inclusive. Furthermore, the evidence must show use of the trade marks for the goods and services on which the opposition is based, namely the following:


(1) French trade mark registration No 97 683 793


Class 29: Preserved dried and cooked potatoes, fries, frozen fries, prepared meals containing potato, frozen products containing potato.


(2) French trade mark registration 97 667 496


Class 29: Preserved, dried and cooked potatoes, fries, frozen fries, ready made meals containing potato.


(3) International trade mark registration No 678 869


Class 29: Preserved dried and cooked potatoes, frozen fries, ready-made food containing potato.


According to Rule 22(3) CTMIR, the evidence of use shall consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based.


On 04/07/2014, according to Rule 22(2) CTMIR, the Office gave the opponent until 04/09/2014 to submit evidence of use of the earlier trade marks, which was later extended until 04/11/2014. On 21/08/2014, 26/08/2014 and 27/10/2014, within the time limit, the opponent submitted evidence of use.


On 26/08/2015, after expiry of the time limit, the opponent submitted additional evidence.


The Opposition Division assessed the additional set of proof of use and found that it does not contain evidence that could change the result of the decision based on the proof of use submitted within the time limit. The Opposition Division will not proceed with the examination of the belated evidence. The interests of both parties will not be prejudiced.


The evidence to be taken into account is the following:


  • Lists of tariffs, written in Spanish, dated between 2008-2012, demonstrating the mark next to items ‘3/6 (9/9)’ (code 791600E) and ’Julienne (6/6)’ (code 761600E), which according to the attached screenshot from the opponent’s website, refer to French fries.

  • Several invoices issued by McCain España S.A. and addressed to various companies in Spain, dated between 2008-2013, partially illegible, containing items, such as ‘EASY 3/8’ (code 791600E) and ‘EASY 6/6’ (code 761600E), according to the opponent referring to potato goods.

  • Lists of tariffs, a letter and two website screenshots, written in Italian, dated between 2008-2011, demonstrating, inter alia, the mark in relation to potato products, such as ‘patate novelle’, ‘patate a fette’, ‘backing potato’.

  • Five invoices issued by McCain Sud S.A. and addressed to companies in Italy, dated between 2008-2013, containing the following items: ‘potatoes skin off’, ‘potato parisienne’, ‘potato slices’, ‘baking potato’.

  • A brochure written in French, dated 2009, demonstrating the marks and in relation to frozen potato goods.

  • Lists of tariffs, written in French, dated between 2010-2013, demonstrating the mark in relation to the items such as ‘pommes noisette’, ‘potatoes roty’, ‘frites easy 9/9’ or ‘frites easy 6/6’.

  • A great number of invoices issued by McCain Alimentaire S.A.S. and addressed to various companies in France, dated between 2008-2013, containing items, such as ‘EASY 9/9’ (code 791600), ‘P NOISETTE EASY’, ‘POTATO ROTY EASY or ‘POMME SAUTEE EASY’.

  • Promotional leaflet, written in French, partially illegible, mentioning potato products.

  • Promotional leaflet written in French, dated March 2013, demonstrating the mark in relation to potato goods.


The applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods for which the earlier marks are registered.


The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.


The evidence filed, namely the invoices, lists of tariffs, brochure and leaflets show that the place of use is France and Italy. This can be inferred from the language of the documents (French and Italian), the currency mentioned (Euro) and some addresses in France and Italy. Therefore, the evidence relates to the relevant territory.


Most 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, 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, in particular the invoices and lists of tariffs, provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use. The evidence clearly demonstrates that the goods in question were offered under the trade mark continuously during the entire relevant period. The amounts in the invoices regarding goods in question reach thousands of euros and show sufficient commercial volume for it to be concluded that the use of the mark is genuine in France and Italy. Moreover, it must be noted that as a general rule use of the mark need not be quantitatively significant for it to be deemed genuine.


Therefore, the Opposition Division considers that the opponent has provided sufficient indications concerning the extent of the use of the earlier marks.


In the context of Rule 22(3) CTMIR, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, of the use of the mark as registered, or of a variation thereof according to Article 15(1), second subparagraph, point (a) CTMR, and of its use for the goods and services for which it is registered.


According to Article 15(1), second subparagraph, point (a) CTMR, the following shall also constitute use within the meaning of paragraph 1: use of the Community trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered. When examining the use of an earlier registration for the purposes of Article 42(2) and (3) CTMR, Article 15 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.


The General Court has stated that strict conformity between the sign as used and the sign registered is not necessary. However, the difference must be in negligible elements and the signs as used and registered must be broadly equivalent (judgment of 23/02/2006, T-194/03, ‘Bainbridge’, para. 50).


In order to decide whether the sign as used and the sign as registered are broadly equivalent, it must first be established which elements are negligible.


In the judgment of 24/11/2005, T-135/04, ‘Online Bus’, paragraph 36, it was held that the 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 arrangement of the trade mark.


In the present case, it is considered that the opponent filed sufficient proof of use of the sign as registered, since the marks appear in the documents as registered, namely as ‘EASY’ (word) and (figurative). As far as the sign is concerned, the addition of the word ‘Nature’ is not a significant alteration of the distinctive character of the earlier marks as registered. The word ‘Nature’ is a very basic English word that is frequently used in many business sectors and is considered to be a weak element that merely refers to the characteristics of the goods, namely that they are based on or contain natural ingredients.


This is because use of a registered word mark together with a generic indication of the product or descriptive term will be considered as use of the registered mark. Additions which are just indications of characteristics of the goods and services, such as their kind or quality of the goods, do not in general constitute use of a variant but use of the mark itself.


In view of the above, the Opposition Division considers that the use of the abovementioned signs in evidence provided is sufficient to show use of the sign as registered within the meaning of Article 15(1), second subparagraph, point (a) CTMR.


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 (judgment of 11/03/2003, C‑40/01, ‘Ansul’ and judgment of 12/03/2003, T‑174/01, ‘Silk Cocoon’).


However, the evidence filed by the opponent does not show genuine use of the trade marks for all the goods covered by the earlier trade marks.


According to Article 42(2) CTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it shall, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.


In the present case the evidence shows genuine use of the trade mark for the following goods:


(1) French trade mark registration No 97 683 793


Class 29: Preserved dried and cooked potatoes, fries, frozen fries.


(2) French trade mark registration 97 667 496


Class 29: Preserved, dried and cooked potatoes, fries, frozen fries.


(3) International trade mark registration No 678 869


Class 29: Preserved dried and cooked potatoes, frozen fries.


Therefore, the Opposition Division will only consider the abovementioned goods in its further examination of the opposition.



LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) CTMR


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.



  1. The goods and services


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


(1) French trade mark registration No 97 683 793


Class 29: Preserved dried and cooked potatoes, fries, frozen fries.


(2) French trade mark registration 97 667 496


Class 29: Preserved, dried and cooked potatoes, fries, frozen fries.


(3) International trade mark registration No 678 869


Class 29: Preserved dried and cooked potatoes, frozen fries.


The contested goods and services are the following:


Class 29: Preserved, frozen, dried and cooked vegetables; prepared meals; snack foods; canned vegetables; soups; potato crisps.

Class 30: Rice; flour and preparations made from cereals; sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes.

Class 31: Fresh vegetables.

Class 35: Retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, prepared meals, snack foods, canned vegetables, soups, potato crisps, rice, flour and preparations made from cereals, sandwiches, prepared meals, filled sandwiches, pizzas, pies and pasta dishes, fresh vegetables.


As a preliminary remark, it is to be noted that according to Rule 2(4) CTMIR, the Nice Classification serves purely administrative purposes. Therefore, goods or services may not be regarded as being similar or dissimilar to each other simply on the grounds that they appear in the same or different classes in the Nice Classification.


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 29


The contested preserved, frozen, dried and cooked vegetables include, as a broader category, the opponent’s preserved, dried and cooked potatoes. It is impossible for the Opposition Division to filter these goods from the abovementioned category. Since the Opposition Division cannot dissect ex officio the broad category of the applicant’s goods, they are considered identical to the opponent’s goods.


The contested snack foods overlap with the opponent’s preserved, dried and cooked potatoes in products such as potato crisps, which are made of preserved potatoes and served as snack food. Therefore, they are considered identical.


The contested canned vegetables overlap with the opponent’s preserved, dried and cooked potatoes in canned preserved, dried or cooked potatoes. Therefore, they are considered identical.


The contested potato crisps are included in the broad category of the opponent’s preserved, dried and cooked potatoes. Therefore, they are considered identical.


The contested prepared meals; soups are similar to the opponent’s preserved, dried and cooked potatoes. They may coincide in their manufacturers, end users and distribution channels. They have the same nature and purpose. The contested goods often contain preserved potatoes.


Contested goods in Class 30


The contested sandwiches; prepared meals; filled sandwiches; pizzas, pies and pasta dishes are similar to the opponent’s preserved, dried and cooked potatoes, fries, frozen fries. They often coincide in their manufacturers, end users and distribution channels. They have the same nature and purpose. They may be complementary or in competition with each other.


The contested rice; flour and preparations made from cereals are dissimilar to all the opponent’s goods. Even though the conflicting goods are all consumed by humans, this is not enough to find similarity between them, since they do not usually have the same producers. Moreover, with regards to flour and preparations made from cereals, they have different purpose, nature and method of use than the opponent’s goods.


Contested goods in Class 31


The contested fresh vegetables are similar to a low degree to the opponent’s preserved, dried and cooked potatoes, as they may coincide in their distribution channels and end users. Moreover, they are in competition with each other.

Contested services in Class 35


Retail services concerning the sale of particular goods are similar to a low degree to these particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.


Therefore, the contested retail services connected with the sale of food, preserved, frozen, dried and cooked vegetables, snack foods, canned vegetables, potato crisps are similar to a low degree to the opponent’s preserved, dried and cooked potatoes, fries, frozen fries.


The contested retail services connected with the sale of prepared meals, soups, rice, flour and preparations made from cereals, sandwiches, prepared meals, filled sandwiches, pizzas, pies and pasta dishes, fresh vegetables are not similar to all the opponent’s goods. Apart from being different in nature, given that services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of the goods. Furthermore, the method of use of those goods and services is different. They are neither in competition nor complementary.


Similarity between retail services of specific goods covered by one mark and specific goods covered by the other mark can only be found where the retailed goods and the specific goods covered by the other mark are identical. This condition is not fulfilled in the present case since the goods at issue are not identical.



  1. The signs


(1) French trade mark registrations No 97 683 793 and 97 667 496:



(2) international trade mark registration No 678 869:

EASY


Earlier trade marks


Contested sign


The relevant territory is France and Italy.


The earlier mark (1) is a figurative mark composed of the verbal element ‘Easy’ depicted in black stylised italicised typeface with an elongated letter ‘y’. The earlier mark (2) is a word mark composed of the verbal element ‘EASY’. According to the practice of the Office, in the case of word marks, the use of upper or lower case letters is not relevant, since it is the word as such which is protected. The contested sign is a figurative mark composed of the verbal element ‘easyFoodstore’ represented in white stylised typeface and placed on a rectangular orange background.


Visually, the signs are similar to the extent that they coincide in the element ‘Easy’, placed at the beginning of the contested sign and, at the same time, constituting the entire earlier mark (2) and the only verbal element of the earlier mark (1). The marks differ in the element ‘Foodstore’ of the contested sign, as well as in its figurative element and stylisation. With regards to the earlier mark (1) the conflicting signs differ also in the stylisation of the earlier mark.


Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory the pronunciation of the signs coincides in the sound of the letters ‛Easy’ present identically in both signs, and to that extent the signs are aurally similar. The pronunciation differs in the sound of the letters ‛Foodstore’ of the contested mark, which have no counterparts in the earlier marks.


Conceptually, neither of the signs has a meaning for 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.


Taking into account the abovementioned visual and aural coincidences, the signs under comparison are similar.



  1. Distinctive and dominant elements of the signs


In determining the existence of likelihood of confusion, the comparison of the conflicting signs must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components.


The marks under comparison have no elements which could be considered clearly more distinctive than other elements.


The marks under comparison have no elements which could be considered clearly more dominant (visually eye‑catching) than other elements.



  1. 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 has 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.



  1. Relevant public – degree of attention


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


In the present case, the goods and services found to be identical and similar (to various degrees) are directed at the public at large. The degree of attention will be average.



  1. Global assessment, other arguments and conclusion


The contested goods and services were found to be partly identical, partly similar (to various degrees) and partly dissimilar to the opponent’s goods. The conflicting signs are similar to the extent that they coincide in the element ‘Easy’, placed at the beginning of the contested sign and, at the same time, constituting the entire earlier mark (2) and the only verbal element of the earlier mark (1).


On the other hand the marks differ in the element ‘Foodstore’ of the contested sign, as well as in its figurative element and stylisation. With regards to the earlier mark (1) the conflicting signs differ also in the stylisation of the earlier mark.


However, these differences are not sufficient to outweigh the significant similarities found between the signs.


The first parts of the conflicting marks are identical. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that 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. Consequently, the identical first elements of the marks at issue have to be taken into account when assessing the likelihood of confusion between the marks.


With regards to the additional figurative element of the contested sign and the stylisation of the earlier mark (1) and of the contested sign, it must be reminded that when signs consist of both word and figurative components, the principle has been established that the word element of the sign usually has a stronger impact on the consumer than the figurative one. This is because the public tends not to analyse signs and will most readily refer to a sign by its verbal component. Therefore, the figurative element and stylisation of the signs are of less importance, since consumers will focus their attention on the verbal elements of the marks.


Account should also be taken of the fact that average consumers only rarely have the chance to make a direct comparison between the different marks, but must place their trust in the imperfect picture or recollection of them that they have kept in their minds (see judgment of 22/06/1999, C‑342/97, ‘Lloyd Schuhfabrik’, paragraph 26). Moreover, in general, the established similarities between trade marks, rather than their differences, are retained in the average consumer's recollection.


Even if the marks were not directly confused with one another, for the purposes of Article 8(1)(b) CTMR there is a likelihood of association when the average consumer, although aware of the differences between the signs, nevertheless assumes that owing to their similarities they are derived from the same undertaking or indeed economically-linked undertakings.


In the present case, the relevant consumer may see the conflicting signs as being brand variations intended for different line of products or services, originating from the same undertaking or, as the case may be, economically-linked undertakings. In other words, the relevant consumers may confuse the origin of the conflicting goods and services.


The applicant argues that its CTM has reputation and filed various pieces of evidence to substantiate this claim.


The right to a CTM begins on the date when the CTM is filed and not before, and from that date on the CTM has to be examined with regard to opposition proceedings.


Therefore, when considering whether or not the CTM falls under any of the relative grounds for refusal, events or facts which happened before the filing date of the CTM are irrelevant because the rights of the opponent, insofar as they predate the CTM, are earlier than the applicant’s CTM.


Considering all the above, particularly taking into account the fact that the differences between the signs are confined to secondary elements and the fact that the entire earlier mark (2) and the sole verbal element of the earlier mark (1) are contained in the contested sign, the Opposition Division finds that there is a likelihood of confusion, which includes a risk of association, on the part of the public and therefore the opposition is partially well founded on the basis of the opponent’s French and international trade mark registrations.


It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar (to various degrees) to those of the earlier trade mark.


The rest of the contested goods and services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) CTMR, the opposition based on this article and directed at these goods and services cannot be successful.



COSTS


According to Article 85(1) CTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) CTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division shall decide a different apportionment of costs.


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




The Opposition Division


Gordana TRIPKOVIĆ

Eamonn KELLY

Plamen IVANOV



According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. 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 800 has been paid.

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