OPPOSITION No B 2 360 231

Gottlieb Binder GmbH & Co. KG, Bahnhofstr. 19, 71088 Holzgerlingen, Germany (opponent), represented by Bartels und Partner, Patentanwälte, Lange Str. 51, 70174 Stuttgart, Germany (professional representative)

a g a i n s t

Climate Invest B.V., 33, St. Barbara Bastion, Valletta VLT 1961, Malta (applicant), represented by Hortis Legal, Veraartlaan 8, 2288 GM Rijswijk ZH, The Netherlands (professional representative).

On 21/10/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 360 231 is partially upheld, namely for the following contested goods:

Class 16: Plastic film for packaging and covering purposes; packaging materials; self-adhesive plastic sheets for lining shelves.

2. European Union trade mark application No 12 480 422 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 12 480 422 for the word mark ‘GEKKOART’. The opposition is based on European Union trade mark registrations No 3 466 232 and No 11 188 695, both for the word mark ‘Gecko’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

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

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

1. The goods

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

1. Earlier EUTM No 3 466 232 (after partial revocation; decision of 18/09/2015, No 9821C)

Class 17: Adhesive tapes, adhesive strips, adhesive bands, adhesive foils, adhesive films, all made of plastic; but not including profiles made of plastic or semi-finished products.

2. Earlier EUTM No 11 188 695

Class 7: Parts in the form of planar attachment and adhesion components for handling apparatus and handling systems of all kinds, including for workpieces and building materials, in particular robots, handling machines and grippers and for mechanically operated ancillary equipment for the aforesaid machines, in particular for automatic handling systems, material conveyor belts, conveyor belt systems, tool change systems and workpiece and tool transport systems; fastening systems for abrasives for sanding discs, consisting of abrasive wheels and retaining plates; fastening systems for abrasives and abrasive holders all for use with power tools (parts of machines, removable parts included).

Class 9: Apparatus and instruments for steering, switching, converting, storing, regulating or controlling electricity, namely closure, adhesion and fastening systems equipped with integrated intelligence; panels, namely solar panels for generating energy; spectacle cases; frames for glasses; head protection; helmets for use in sports; gloves, namely protective gloves, military gloves, fire-fighting gloves, asbestos gloves for protection against accidents, gloves for protection against x-rays for industrial purposes, gloves for protection against accidents, gloves for divers, work gloves.

Class 10: Elastic bandages; anatomical bandages for joints; knee bandages (orthopaedic); slings (support bandages); orthopedic articles; wrist supports; neck supports; cuffs for gloves; muscle-building and other invigorating sports and training apparatus; orthopaedic footwear; boots for medical purposes; orthopaedic soles; supports for flat feet; belts for medical purposes; orthopaedic belts; prostheses, including hair prostheses; gloves for medical purposes; gloves for massage; corsets for medical purposes; incontinence sheets; cushions for medical purposes; air cushions for medical purposes; pads (pouches) for preventing pressure sores on patients' bodies; surgical clips; compressors (surgical); colostomy pouches; soporific pillows for insomnia; draw-sheets for sick beds; artificial teeth; dentures; abdominal belts; abdominal corsets; masks for use by medical personnel; anaesthetic face masks; surgical cloths; sterile sheets (surgical); coverings and wound treatment material, including suture material; clothing for use in operating theatres; feeding bottle valves; brushes fret cleaning body cavities; padding and covers for operating tables; x-ray and abrasion protection.

Class 21: Gloves for household purposes; gardening gloves; polishing gloves; household or kitchen utensils and containers; articles for cleaning purposes; cleaning instruments (hand-operated); dusting apparatus (non-electrical); brooms; cloth for washing floors; mops; flat mops; insect traps with sticky surfaces; window fly traps; scrubbing brushes; wax-polishing appliances for parquet floors, non-electric; cloths for cleaning spectacles; fly traps, namely fly catchers (traps or whisks).

Class 28: Swimming jackets; gloves, namely sports gloves, in particular golf gloves, baseball gloves, boxing gloves, fencing gauntlets, goalkeepers gloves; gloves for games.

The contested goods (after limitation) are the following:

Class 16: Plastic film for packaging and covering purposes; adhesives for stationery, household purposes and art use; packaging materials; self-adhesive plastic sheets for lining shelves.

Class 24: Textiles and textile goods, not included in other classes; bed covers; table covers.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under 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.

Before proceeding to the comparison, it is useful to describe the goods covered by the opponent’s marks.

Specifically, earlier mark 1 is registered for a range of adhesive materials in the form of tapes, strips, bands, foils and films, made from plastic, with the exception of plastic profiles and excluding any semi-finished goods. The field of application of goods in Class 17 is other than for stationery, medical, or household purposes. The intended purpose of those goods is fastening, fixing, gripping etc. in manufacture, or packing, stopping and insulating. The opponent’s goods are rather specialised ones and are mainly directed at industry professionals working, for example in building construction, repairs, textile, transport, sports and other sectors. Given the potentially technically advanced nature of those goods, it can be reasonably assumed that they are designed and manufactured by specialised undertakings with expertise and know-how in materials science. Furthermore, they are usually made to measure to meet the specific needs of their customers. That indicates that the opponent’s goods are offered on the market through specific commercial channels (such as industry trade fairs, direct sales) and do not commonly appear on the shelves of general purpose hardware stores or shops dealing with home improvement supplies.

In Class 7, earlier mark 2 has protection for various (adhesion) attachments for handling apparatus/systems, fastening systems for abrasives, all referring essentially to parts of machines. The purpose of those goods is gripping, fastening and holding of various components in robots or mechanically operated equipment. These are highly specialised goods directed at industry professionals.

In Class 9, earlier mark 2 covers closure, adhesion and fastening systems, solar panels, eyewear frames and cases, protective headgear and gloves. In that regard, it has to be borne in mind that term ‘namely’, used in the opponent’s list of goods to show the relationship of individual goods with broader categories is exclusive and restricts the scope of protection only to the specifically listed goods.

In Class 10, earlier mark 2 is registered for a range of medical, surgical and orthopaedic articles, training apparatus for medical purposes, and prostheses. Although the pertinent fields of application of those goods vary, they are, broadly speaking, intended for health-care. They are mainly specialised goods directed at professionals. The usual origin of such goods is the medical supplies industry which uses dedicated distribution and sales channels.

In Class 21, earlier mark 2 covers household or kitchen utensils and containers, articles for cleaning purposes, hand-operated cleaning instruments. Those goods are intended for the public at large and are offered on sales outlets dealing with household supplies and home cleaning products. Nevertheless, the scope of protection encompasses also utensils and articles intended for professional use, such as for office space cleaning.

In Class 28, and in view of the exclusive effect of the term ‘namely’, earlier mark 2 has protection for swimming jackets, various sports gloves and gloves for games. They are swimming aids or components in games sportswear. Although such goods are directed at the public at large, they commonly move through rather specialised commercial channels, such as sporting supplies stores.

Contested goods in Class 16

The contested plastic film for packaging and covering purposes; packaging materials; self-adhesive plastic sheets for lining shelves are, directly or potentially, plastic materials. Although the actual purpose of the contested goods, being packaging, wrapping or lining, does not coincide with the intended purpose of the opponent’s goods in Class 17 of earlier mark 1, it is considered that the same raw materials for these goods, in the present case, suggest that they are manufactured by the same undertakings. That is supported by the finding that the goods at issue are finished articles. Furthermore, they are used for a similar purpose, insofar as they protect against certain external factors (the opponent’s goods can provide insulation against humidity, whereas the contested goods can protect against scratches or other damage, especially in transport). The goods in both classes can be directed at the same public and can even move through the same distribution channels. Therefore, the contested plastic film for packaging and covering purposes; packaging materials; self-adhesive plastic sheets for lining shelves are similar to the opponent’s goods in Class 17 of earlier mark 1.

The Opposition Division notes that, as regards the opponent’s goods of earlier mark 2, there are no relevant commonalities vis-à-vis the contested plastic film for packaging and covering purposes; packaging materials; self-adhesive plastic sheets for lining shelves. They are different by natures and purposes. They originate from different industries. Furthermore, they are neither complementary, nor in competition with each other. The mere fact that certain types of the contested goods (for example shelve-lining materials, or universal packaging materials) can be directed at the same consumer circles that buy the opponent’s goods in Class 21 is insufficient in itself for a finding of a similarity. In that regard, the factor that such goods move through different distribution channels, and do not appear in the same sections of department stores, must be taken into consideration. Therefore, the abovementioned contested goods are dissimilar to all of the opponent’s goods of earlier mark 2.

The rest of the contested goods in this class have no relevant connections with the opponent’s goods covered by earlier marks 1 and 2. The contested adhesives for stationery, household purposes and art use refer to glue or other binding agents that are expressly intended for non-industrial use. These are mass consumption articles for home, school or office use, or for creating works of arts and crafts. The distribution channels for such goods are, for instance, stores dealing with supplies for home, school or hobby materials. Thus, it is evident that the goods under comparison do not share the same sales channels. They are not directed at the same public, either. That leads to the finding that, even though the goods in Classes 16 and 17 have in common some adhesive properties, the diverging intended purposes, relevant publics and distribution channels preclude the finding of any similarity. For the sake of completeness, the Opposition Division notes that the opponent did not put forward any arguments to support the claimed connection between the contested adhesives for stationery, household purposes and art use and the earlier goods in Class 17.

The remaining contested goods in this class have no commonalities with the opponent’s goods of earlier mark 2, either. The nature, purpose and method of use of the contested adhesives for stationery, household purposes and art use clearly differ from those of the earlier goods. They do not share the same commercial origin. Furthermore, they are neither strictly complementary nor directly interchangeable. The mere fact that they may be directed at the same consumer circles (for example, insofar as earlier mark 2 covers certain home cleaning articles for mass consumption) is insufficient in itself as to lead to a finding of similarity.

All in all, the contested adhesives for stationery, household purposes and art use are dissimilar to all of the opponent’s goods of the two earlier marks.

Contested goods in Class 24

The contested goods in this class originate from the textile industry and comprise raw materials (textiles, fabrics), semi-finished goods for use in manufacture in the fashion or furnishings industries and finished goods in the form of bed linen or table linen. They have no relevant commonalities with any of the opponent’s goods. They are clearly different by purposes. Furthermore, they are neither complementary nor in competition.

The opponent argues that the contested goods in Class 24 are highly similar to the opponent’s goods in Classes 10, 21 and 28, on account of the fact that they consist of textiles. However, that argument alone does not suffice for a finding of similarity.

As regards the opponent’s goods in Class 10 of earlier mark 2, the opponent claims that they include ‘cushions, pillows, draw-sheets for sick beds’. The Opposition Division notes that the list of the opponent’s goods actually contains such items, yet they are defined in a very specific manner, namely incontinence sheets; cushions for medical purposes; air cushions for medical purposes; soporific pillows for insomnia; draw-sheets for sick beds; sterile sheets (surgical).

It is obvious that the opponent’s goods are intended for use with patients in health-care institutions and nursing homes. They are not interchangeable with the general-purpose bed linen for which protection is sought by the contested sign. Despite the fact that such goods can be made of textile materials, the goods are not similar. They will not be found at the same sales points. Bed linen and bed covers are usually sold either in specialist home textile stores or in dedicated sections in department stores or even supermarkets. In contrast, the distribution channels of medical and surgical bed linen are specialised distributors of medical equipment and devices supplying hospitals and specialised shops where patient and nursing care products are sold.

The opponent argues that its goods can be successfully used in a variety of industrial fields, among others as a closing or fixing system for bed covers or table covers (for instance to prevent slipping). The opponent points out that its product is a silicon tape that can be used as essential part of the goods for which the contested sign is applied for, thus claiming ‘a close complementary nature’ between the goods.

In that regard, first of all, it is recalled that the comparison of the goods must be based on the wording indicated in the respective lists of goods. Any actual or intended use not stipulated in the list of goods is not relevant for the comparison since this comparison is part of the assessment of likelihood of confusion in relation to the goods on which the opposition is based and directed against; it is not an assessment of actual confusion or infringement (judgment of 16/06/2010, T‑487/08, Kremezin, EU:T:2010:237, § 71).

Secondly, the Opposition Division points out that complementarity has to be clearly distinguished from use in combination where goods are merely used together whether by choice or convenience. This means that they are not essential for each other (decision of 16/12/2013, R 634/2013-4 – ‘ST LAB’ § 20). In the present case, a strict complementarity between the goods does not exist.

In view of the foregoing, the contested textiles and textile goods, not included in other classes; bed covers; table covers are dissimilar to all of the opponent’s goods of the two earlier marks.

Conclusion about comparison of goods

As shown above, the contested goods are dissimilar to all of the opponent’s goods of earlier EUTM No 11 188 695 (earlier mark 2).

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the goods are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected, insofar as it is based on earlier EUTM No 11 188 695.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR because the goods of earlier EUTM No 11 188 695 are obviously not identical.

The examination of the opposition continues in relation to earlier EUTM No 3 466 232 (earlier mark 1).

2. 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, whilst the relevant contested goods are directed at the general public and at business customers with specific professional knowledge or expertise, the opponent’s goods that are similar to the contested ones are specialised goods directed at a professional public. Therefore, the relevant public for assessing likelihood of confusion is the professional public only, as solely that part of the public is likely to be exposed to both signs under comparison.

The professional public tends to be more sophisticated and knowledgeable in connection with purchases in a given field. On the other hand, the relevant goods encompass inexpensive, frequently bought materials as well as technologically advanced and relatively more expensive articles. Therefore, the relevant public’s degree of attention is considered to vary from average to above average, depending on the specificity and price of the goods at issue.

3. The signs

Gecko	GEKKOART
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the relevant public, to take into consideration a potential impact of the meaning of the verbal elements in the marks in relation to the contested goods on this part of the public.

The earlier mark is composed of the sole word ‘Gecko’. The relevant public will understand it as ‘any small insectivorous terrestrial lizard of the family Gekkonidae, of worm regions. Their digits have adhesive pads, which enable these animals to climb on smooth surfaces’ (www.collinsdictionary.com).

It has to be pointed out that the word ‘GECKO’ primarily refers to a type of lizard. Although the relevant goods of the earlier mark have adhesive properties and, as shown above, geckos have a special ability to climb on smooth surfaces thanks to the adhesive pads on their digits, ‘GECKO’ is a fanciful term in the context of the opponent’s goods, as it requires a huge mental leap between the notion of the lizard and adhesive tapes, strips, etc., made of plastic in Class 17. At most, the term can be seen as vaguely allusive, yet the Opposition Division considers that the allusion is sufficiently imaginative and does not materially affect the term’s distinctiveness.

As regards the contested sign, the Court has held that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, when perceiving a word sign, he will break it down into elements which, for him, suggest a specific meaning or which resemble words known to him (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). It is reasonable to assume that consumers will split the contested sign into the words ‘GEKKO’ and ‘ART’, particularly as the word ‘ART’ conveys a concrete meaning known to them: ‘a practical pursuit or trade of a skilled nature, a craft; an activity that can be achieved or mastered by the application of specialist skills’, among other meanings (www.oed.com).

A part of the relevant public can perceive the element ‘GEKKO’ of the contested sign as a variation or misspelling of the word ‘GECKO’, in which case it will be understood in the same sense as in the earlier mark. Although it cannot be entirely excluded that, for some consumers, the contested sign as a whole may evoke the idea of artworks depicting geckos, it is more likely, however, that the combination ‘GEKKOART’ will be perceived as a mere sum of its parts.

In the context of the relevant contested goods, ‘GEKKO’ has an average degree of distinctiveness. The element ‘ART’ has a somewhat laudatory character, since the public will perceive it as pointing to the idea of the specialist skills of the manufacturer that offers the goods at issue. Therefore, the distinctiveness of the element ‘ART’ in the contested sign is lower than that of the other element, ‘GEKKO’.

As regards dominant elements, it has to be noted that the earlier mark has no identifiable components. Whilst the relevant public is likely to perceive two verbal components in the contested sign, it, being a word mark, has no elements that can be considered more dominant (visually eye-catching) than others.

Visually, the signs coincide in the sequence of the letters ‘GE*KO’. The signs differ, however, in the earlier mark’s ‘C’ and in the contested sign’s ‘K’ appearing in the middle of the shared sequence, ‘GE*KO’, respectively. Further, the signs differ in relation to the contested sign’s element ‘ART’ which, albeit having no counterpart in the earlier mark, has lower distinctiveness when compared to the element ‘GEKKO’.

The contested sign features four identical letters out of the five letters of the earlier mark. On account of the fact that the coincidence lies in the beginning of the contested sign, which is the part that generally first catches the attention of the public who reads from left to right, it is considered that they are visually similar to an average degree.

Aurally, the phoneme corresponding to ‘CK’ and ‘KK’ in the middle of a word is the same in English. Therefore, the pronunciations of the signs coincide in the sounds of the letter sequences ‘GECKO’ and ‘GEKKO’. The signs differ in relation to the contested sign’s element ‘ART’ which, albeit having no counterpart in the earlier mark, has lower distinctiveness when compared to the element ‘GEKKO’.

The coinciding letter sequence results in two identical syllables, whereas the additional letters in the contested sign form one syllable. Since the coincidence lies in the beginning of the contested sign and the pronunciation of the differentiating element is shorter than that of the shared one, the signs are aurally similar to a high degree.

Conceptually, a part of the public will associate the contested sign’s element ‘GEKKO’ with the same meaning as the earlier mark, ‘Gecko’. The contested sign’s element ‘ART’, on account of its slightly laudatory role, has a lesser impact in the conceptual impression conveyed by the sign as a whole. Since the semantic connection between the signs resides in an element that has relatively stronger distinctiveness than that of the differentiating element, it is considered that, for that part of the public, the signs are similar to a high degree conceptually.

For the rest of the public, who does not attach any meaning to the contested sign’s element ‘GEKKO’, but recognises the meanings carried by the earlier mark and the contested sign’s word ‘ART’, the signs are not conceptually similar.

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

4. Distinctiveness of the earlier mark

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

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

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. As explained in section c) of this decision, the sole element of the earlier mark has no clear meaning for any of the goods in question from the perspective of the relevant public. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods covered are from the same or economically linked undertakings.

Some of the contested goods are similar to the opponent’s goods. The similarity of the signs (being average on a visual level and high on an aural level) results from the words ‘GECKO’ and ‘GEKKO’. Admittedly, there are differences between the signs which will not pass unnoticed by the relevant public. However, the differences are not sufficient to rule out any likelihood of confusion, including likelihood of association, on the part of the relevant public.

Specifically, the contested sign’s element ‘ART’ has a somewhat laudatory meaning. When encountering the contested sign, ‘GEKKOART’, the public is likely to pay more attention to the element ‘GEKKO’, which has a relatively stronger distinctive character. Furthermore, for a part of the relevant public, the elements in which the visual and aural similarities reside also create a strong conceptual similarity between the signs. Consequently, the difference resulting from the additional component in the contested sign does not remove its overall impression far enough from that of the earlier mark.

In that regard, it has to be pointed out that it is common practice, on the relevant market, for manufacturers to make variations of their trade marks, for example by altering the typeface or colours, or adding verbal or figurative elements to them, in order to denote new product lines, or to endow their trade mark with a new, fashionable image. Therefore, when encountering the conflicting signs, the relevant public, who only rarely has the chance to directly compare two trade marks, is likely to mentally register the fact that the signs have in common the element ‘GECKO’/ ‘GEKKO’ and perceive the contested sign as a variation of the earlier mark, for instance as referring to a more sophisticated, or specialist-skills-intensive product line. Consequently, the public may attribute the same (or economically linked) commercial origin to the goods that are similar, even where the public’s degree of attention is enhanced. Even consumers with a high level of attention need to rely on their imperfect recollection of trade marks (judgment of 21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

Based on the average degree of inherent distinctiveness of the earlier mark, it is considered that the differences identified in the signs are not, in the present case, of such an impact as to enable the relevant public to safely distinguish between the signs in the context of similar goods.

The applicant refers to previous national analogous decisions to support its arguments. However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks on the national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system which applies independently of any national system (13/09/2010, T‑292/08, Often, EU:T:2010:399).

Even though previous national decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the previous cases referred to by the applicant are not relevant to the present proceedings. Aside from quoting the case numbers, dates and the names and jurisdictions of the national authorities in Portugal, Germany and Spain, the applicant did not submit sufficient information on the factual circumstances, let alone the legal backgrounds, that led to the finding of visual dissimilarity between the respective signs. In relation to the Court judgments referred to by the applicant in the context of the aural comparison, they are not on a par with the present case because the signs are not comparable. Therefore, the applicant’s arguments in that regard are set aside.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public. Therefore, the opposition is partly well-founded on the basis of the opponent’s European Union trade mark registration No 3 466 232. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

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

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

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods because the goods are obviously not identical. Furthermore, as regards the dissimilar goods, it is not necessary to continue the examination of the opposition under Article 8(1)(b) EUTMR in relation to the remaining part of the public in the relevant territory, as the comparison of the goods does not depend on linguistic factors and the outcome of the opposition would be the same.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, 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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Octavio MONGE GONZALVO

Solveiga BIEZA

Martina GALLE

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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.