DECISION

of the Second Board of Appeal

of 16 September 2016

In Case R 2515/2015-2

Hämmerling The Tyre Company GmbH
Bielefelderstr. 216 33104 Paderborn Germany	Applicant / Appellant

represented by Bode Meitinger Patentanwalts GmbH, Hermann-Schmid-Straße 10, 80336, München, Germany

v

Cheng Shin Rubber Ind. Co., Ltd.
215, Meei-Kong Rd., Huang-Ts'o Village Ta-Suen, Chang-Hwa Hsien Taiwan	Opponent / Respondent

represented by Casalonga Alicante, S.L., Avenida Maisonnave, 41-6C, 03003 Alicante, Spain

APPEAL relating to Opposition Proceedings No B 2 414 087 (European Union trade mark application No 13 008 719)

The Second Board of Appeal

composed of T. de las Heras (Chairperson), R. Ocquet (Rapporteur) and C. Negro (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 18 June 2014, Hämmerling The Tyre Company GmbH (‘the applicant’) sought to register the word as amended

MÄXX

for the following list of goods (’the contested sign’):

Class 12 - Tyres for commercial vehicles; Wheel trims.

2. The application was published on 2 July 2014.

3. On 2 October 2014, Cheng Shin Rubber Ind. Co., Ltd. (‘the opponent’) filed an opposition against the registration of the published trade mark application for as amended goods.

4. The grounds of opposition were those laid down in Articles 8(1)(b) and 8(5) EUTMR.

5. The opposition was based on the following earlier rights:

‑ German trade mark registration No 2 065 438 for the figurative mark

filed on 12 August 1993 and registered on 20 May 1994

for the following goods:

Class 12 - Tires for vehicles and vehicles wheels; Inner tubes for pneumatic tires.

‑ EUTM No 9 869 041 for the word mark

MAXXIS

filed on 5 April 2011 and registered on 9 December 2011, for the following goods and services:

Class 12 - Tyres; pneumatic tyres; solid tyres; inner tubes for tyres;

Class 18 - Bags; wallets; backpacks; umbrellas;

Class 25 - Clothing; footwear; headgear;

Class 35 - Retail services connected with the sale of tyres, pneumatic tyres, solid tyres, inner tubes for tyres, bags, wallets, backpacks, umbrellas, clothing, footwear and headgear.

‑ United Kingdom trade mark registration No 1 544 387 for the figurative mark

filed on 10 August 1993 and registered on 17 June 1994 for the following goods:

Class 12 - Tyres; all included in Class 12.

‑ French trade mark registration No 3 234 491 for the figurative mark

filed and registered on 3 July 2003 for the following goods:

Class 12 - Tyres.

‑ Benelux trade mark registration No 540 707 for the combined mark

filed on 10 August 1993 and registered on 1 August 1994 for the following goods:

Class 12 - Vehicles tires.

‑ Irish trade mark registration No 172 509 for the figurative mark

filed and registered on 19 September 1995 for the following goods:

Class 12 - Tyres and tubes for vehicles and aircraft, all included in Class 12.

‑ Italian trade mark registration No 666 406 for the figurative mark

filed on 13 August 1993 and registered on 2 January 1996 for the following goods:

Class 12 - Tyres

‑ Spanish trade mark No 1 777 611 for the figurative mark

filed on 23 August 1993 for the following goods:

Class 12 - Tyres.

‑ Swedish trade mark registration No 365 104 for the figurative mark

filed on 16 June 2003 and registered on 16 January 2004 for the following goods:

Class 12 - Tyres.

‑ Danish trade mark registration No 200 302 292 for the figurative mark

filed on 18 June 2003 and registered on 1 July 2003 for the following goods:

Class 12 - Wheels and tyres.

‑ Finnish trade mark registration No 137035 for the word mark

MAXXIS

filed on 8 June 1994 and registered on 20 March 1995 for the following goods:

Class 12 - Wheels for land vehicles.

‑ Greek trade mark registration No 120 011 for the combined mark

filed on 15 July 1994 and registered on 17 September1997 for the following goods:

Class 12 - Tyres for vehicles.

‑ Portuguese trade mark registration No 300 195 for the word mark

MAXXIS

filed on 5 May 1994 and registered on 12 December 1995 for the following goods:

Class 12 - Tyres.

‑ Bulgarian trade mark registration No 44 858 for the combined mark

filed on 11 December 2001 and registered on 21 May 2003 for the following goods:

Class 12 - Tyres and tubes for vehicle wheels; patches for repairing tyres; accessories for repairing tyres; treads for retreading tyres; tube parts for vehicles.

‑ Czech trade mark registration No 248 475 for the combined mark

filed on 12 December 2001 and registered on 29 October 2002

for the following goods:

Class 12 - Tyres, tyre tubes.

‑ Slovak trade mark registration No 202 737 for the combined mark

filed on 12 December 2001 and registered on 13 May 2003 for the following goods:

Class 12 - Tyres, tyre tubes.

6. By decision of 26 October 2015 (‘the contested decision’), the Opposition Division upheld the opposition for as amended the contested goods. It gave, in particular, the following grounds for its decision:

‑ The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s EUTM registration No 9 869 041.

The goods and services

‑ The goods and services to be compared are the following:

Class 12 ‑ Tyres; pneumatic tyres; solid tyres; inner tubes for tyres; Class 18 ‑ Bags; wallets; backpacks; umbrellas; Class 25 ‑ Clothing; footwear; headgear; Class 35 ‑ Retail services connected with the sale of tyres, pneumatic tyres, solid tyres, inner tubes for tyres, bags, wallets, backpacks, umbrellas,	Class 12 ‑ Tyres for commercial vehicles; Wheel trims
Earlier right	Contested sign

‑ The contested ‘tyres for commercial vehicles’ are included in the broad category of the opponent’s tyres. Therefore, they are considered identical. The contested ‘wheel trims’ are highly similar to the earlier tyres as they can coincide in producer, end-user and distribution channels. Furthermore they are complementary.

The signs

MAXXIS	MÄXX
Earlier mark	Contested sign

‑ The relevant territory is the European Union. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the Bulgarian-speaking part of the relevant public.

‑ Visually, the signs are similar to the extent that they coincide in ‘MAXX’. However, they differ in the contested sign’s diaeresis of the letter ‘Ä’ and the letters ‘IS’ of the earlier right which are not present in the contested sign. Moreover, the earlier mark has a slightly stylized graphic representation.

‑ Aurally, the pronunciation of the signs coincides in the sound of the letters 'MAXX’ present identically in both signs and to that extent the signs are aurally similar. The pronunciation differs in the sound of the letters 'IS’ of the earlier sign, which have no counterparts in the contested sign. With regards to the diaeresis of the letter ‘Ä’, it is not pronounced in Bulgarian.

‑ Conceptually, neither of the signs have any meaning for the relevant Bulgarian-speaking public. Besides, the Bulgarian alphabet is composed of Cyrillic letters. Although Latin characters are used in advertising, it is not the common way Bulgarian consumers are addressed. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity between the signs.

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

Distinctive and dominant elements of the signs

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

‑ According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed (see below in Global assessment).

‑ Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. The earlier right 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 mark must be seen as normal.

Relevant public - degree of attention

‑ The goods found to be identical or highly similar are directed at the public at large. The degree of attention is considered to be average.

Global assessment, other arguments and conclusion

‑ The signs are visually and aurally similar. The goods have been found identical or highly similar. The relevant public is the Bulgarian-speaking public, with an average degree of attention toward the goods.

‑ The earlier mark and the contested sign share the same first letters ‘MAXX’, except for the diaeresis at the top of the letter ‘Ä’ of the contested sign. 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 almost identical beginnings of the marks at issue have to be taken into account when assessing the likelihood of confusion between the marks.

‑ Considering that the goods have been found identical or highly similar, and the existing similarity between the marks which is at their beginnings, the Opposition Division considers that there is a likelihood of confusion on the part of the Bulgarian-speaking part of the public. A likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. Therefore, the opposition is well founded on the basis of the opponent’s EUTM registration No 9 869 041. It follows that the contested trade mark must be rejected for all the contested goods.

‑ As earlier EUTM No 9 869 041 leads to the success of the opposition and to the rejection of the contested sign for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent.

‑ Since the opposition is successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the opposing marks due to reputation as claimed by the opponent. The result would be the same even if the earlier marks enjoyed an enhanced degree of distinctiveness.

‑ Finally, since the opposition is fully successful on the basis of the ground of Article 8(1)(b) EUTMR, there is no need to further examine the other grounds of the opposition, namely Article 8(5) EUTMR.

7. On 16 December 2015, the applicant filed an appeal against the contested decision, requesting that the decision be as amended set aside. The statement of grounds of the appeal was received on 26 February 2016.

8. In its observations in reply received on 8 June 2016, the opponent requests that the contested decision be upheld.

Submissions and arguments of the parties

9. The arguments raised by the applicant in the statement of grounds may be summarised as follows:

• The applicant reiterates its arguments filed in the opposition proceedings.

No likelihood of confusion

The goods

• It is not true that the contested ‘tyres for commercial vehicles’ are included in the category of the opponent’s ‘tyres’. This is because ‘tyres for commercial vehicles’ have a completely different technology from common tyres. ‘Tyres for commercial vehicles’ differ not only in size, for example, their diameter, width and carcass but also in resistivity against exposure, for example, to technical stress and strain. Thus, the contested ‘tyres for commercial vehicles’ are not identical to common tyres.

The signs

‑ Visually, the signs are dissimilar. The Opposition Division underestimated the fact that the diaeresis over the letter ‘Ä’ would be ignored visually by the relevant public. The absence of the letters ‘IS’ in the contested sign makes a significant difference between the two signs. The contested sign is much shorter than the earlier mark. Furthermore, the graphic representation of the earlier mark with its bold, cramped cursive letters, has a major impact on the relevant public.

‑ Aurally, the signs are not similar, because ‘MAX-IS’ needs two times more for pronunciation than ‘MÄX’ [sic]. Furthermore, with regard to the letter ‘Ä’ it is completely irregular to use the pronunciation of a minority of the EU population to appraise a meaningful difference, such as the said diaeresis, keeping in mind that Bulgaria has a population of approximately 7 million which is less than 1% of that of the European Union (740 million).

‑ Conceptually, it is also completely inconsistent to use an absolute minority of the EU population to evaluate a meaningful difference such as the conceptual meaning, or how that minority may be addressed via advertising keeping again in mind said less than 1%. Furthermore, it cannot be overlooked that the stylized graphic representation of the earlier mark is not written in Cyrillic letters. On the other hand, even the relevant Bulgarian pubic at least knows some English as their second or third language. Thus, even for the relevant Bulgarian public, ‘max’ has a commonly used conceptual meaning, such as ‘to exhaust/inflate something’ or ‘to outbid something’ with respect to the contested sign ‘MÄXX’. On the other hand, the decision that the earlier mark has no meaning is correct. As the contested sign has a meaning on the one hand and the earlier mark is meaningless, there is no conceptual likelihood of confusion

Distinctive element of the contested sign

‑ The visually eye-catching and uncommon diaeresis is a significant element which is clearly dominant as the first vocal in the sign and thus dominates the contested sign. The earlier mark has no distinctive element besides its graphic representation.

Relevant public

‑ ‘Tyres for commercial vehicles’ are not directed at the public at large. This is because hardly anyone, as regards the public at large, owns a commercial vehicle or is even able, or allowed, to drive one. Instead, the relevant pubic comprises forwarding agents, express companies, truck drivers and the like. Thus, the relevant public is a professional one, who is observant, informed and circumspect, much more than the public at large, keeping in mind that the decision to buy sets of tyres for commercial vehicles will have a significant influence in fuel consumption and road safety. The relevant public would not overlook even minor differences between the conflicting signs, as in the present case.

10. The arguments raised by the opponent in reply to the appeal may be summarised as follows:

‑ The contested decision upholding the opposition for all the contested goods should be confirmed.

The goods

‑ Concerning the applicant’s argument that ‘tyres for commercial vehicles’ are not included in the category of the opponent’s ‘tyres’, the opponent notes that ‘tyres for commercial vehicles’ are necessarily included in the broader category of ‘tyres’ protected by the earlier rights which may include all kinds of tyres. Therefore, it is not possible to validly assert that the goods in question are not identical. The applicant does not contest the Opposition Division’s finding in respect of the similarity between ‘tyres’ and ‘wheel trims’. As stated above, they can coincide in producers, end-users and distribution channels. Furthermore, they are complementary. The Opposition Division’s findings in this respect should be confirmed.

The signs

‑ The opponent lists all of its invoked prior rights and compares them to the contested sign.

‑ Visually, the signs in conflict ‘MAXX/MAXXIS’ comprise four and six letters, respectively, sharing their four first letters: ‘MAXX’. The element ‘MAXX’ is identically reproduced in both signs. It has generally been established that consumers pay more attention to the beginnings of signs than to the rest of their components and this element must be given more importance. Concerning the applicant’s arguments on the ‘underestimation of the importance of the diaeresis present in the ‘Ä’ of the contested EUTM as well as the additional letters ‘IS’ in the earlier marks’, the opponent finds that such differences are insufficient to compensate for their high similarity. It cannot be contested that the signs under conflict are visually highly similar. Concerning the Bulgarian, Czech Republic and Slovakian registrations , it should be noted that when a mark is formed of a figurative and a word element, it has generally been established that the word elements should be given more importance when comparing marks. Therefore, the term ‘MAXXIS’ should be considered as the most important and dominant element of the earlier rights. In any case, the opponent notes that for reasons of procedural economy, the decision of the Opposition Division was rendered only on the basis of EUTM registration No 9 869 041 ‘MAXXIS’.

‑ Aurally, concerning the applicant’s argument, that the pronunciation of the signs is different and that the ‘Ä’ will make a difference, the opponent notes that the terms ‘MÄXX/MAXXIS’ have a very similar pronunciation to the extent that they share the first four letters in the same order. The vast majority of EU consumers will not pronounce, ‘Ä’ (with diaeresis) and without it ‘A’, differently. Further, the last two letters ‘IS’, at the end of the earlier rights are insufficient to allow for a distinction between the signs on a phonetic basis.

‑ Conceptually, neither of the signs has a meaning in any of the languages of the European Union. Therefore, the marks are neither similar nor dissimilar from an intellectual basis and should be perceived by relevant EU consumers as fanciful words.

Distinctive element of the contested sign ‑ Distinctiveness of the earlier rights

‑ The applicant’s argument that the visually eye-catching and uncommon diaeresis on the ‘Ä’ is a significant element which clearly dominants the contested sign, cannot be accepted. The ‘Ä’ will not stand out in the mark. The contested sign should be considered as a whole ‘MÄXX’. In respect of the earlier rights ‘MAXXIS’, in the absence of the assessment on the evidence as regards the enhanced distinctiveness of the earlier right, which was invoked, the decision was rendered on the basis of the earlier rights’ normal level of distinctiveness, which was considered to be sufficient for establishing a likelihood of confusion pursuant to Article 8(1)(b) EUTMR.

The relevant consumers

‑ Concerning the applicant’s argument that commercial tyres are not directed at the public at large and that the goods applied for will be directed at professionals, who will not overlook minor differences between the signs, the opponent agrees with the Opposition Division’s findings in the contested decision. Even if some relevant consumers were to be professionals, it is clear that an important part of relevant consumers will be average consumers. In view of the above, the risk of confusion should be assessed in connection with those consumers displaying the lower degree of attention.

Reasons

Preliminary remark: applicable Regulations

11. It is to be noted that the opposition was filed before the entering into force on 23 March 2016 of the new European Trade Mark Regulation which was introduced by Amending Regulation (EU) 2015/2424 (EUTMR), for which the former Community Trade Mark Regulation (EC) No 207/2009 (CTMR) is applicable to this appeal. However, for easy reference the Board will refer to the EUTMR and to the new terminology introduced by the amendment, albeit that the material changes in the Regulation will not be applied to the case at hand.

12. Since the new European Union Trade Mark Implementation Regulation (EUTMIR) will not enter into force until 1 October 2017, the Board will keep on referring to the current Community Trade Mark Implementation Regulation (EC) No 2868/95 (CTMIR) bearing in mind, though, that some Rules have been deleted by the said Amending Regulation.

Admissibility

13. The appeal complies with Articles 58, 59 and 60(1) EUTMR and Rules 48 and 49 CTMIR. It is, therefore, admissible.

Article 8(1)(b) EUTMR

14. According to Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

15. A likelihood of confusion lies in the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 29 and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 17).

16. A likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, §16 and 22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18).

Relevant public/territory

17. In order to carry out the global assessment of the likelihood of confusion, the relevant territory and the relevant public therein has to be established.

18. The opposition is based on an EUTM and on several national trade marks with protection in the Benelux, Bulgaria, the Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Portugal, Slovakia, Spain, Sweden and the United Kingdom. Therefore, the relevant territory for analysing the likelihood of confusion consists of the European Union as far as the earlier EUTM is concerned, on the one hand, and of the relevant Member States as far as the national earlier trade marks are concerned, on the other.

19. For reasons of procedural economy, the Opposition Division first examined the opposition in relation to earlier EUTM No 9 869 041 ‘MAXXIS’ (word mark). The Board will take the same approach.

20. It follows from the unitary character of the European Union trade mark laid down in Article 1(2) EUTMR that an earlier European Union trade mark is protected in the same way in all Member States. Earlier European Union trade marks (and international registrations designating the European Union) may therefore be relied on in opposition to any subsequent application to register a trade mark which infringes their protection, even if it does so only in the perception of the consumers of part of the European Union. It follows that the principle laid down in Article 7(2) EUTMR, according to which it suffices, in order for registration of a trade mark to be refused, that an absolute ground for refusal exists only in part of the European Union, also applies by analogy to a relative ground for refusal under Article 8(1)(b) EUTMR. Thus, ‘a part’ of the European Union can consist of only one Member State (14/12/2006, T‑81/03, T‑82/03 and T‑103/03, Venado, EU:T:2006:397, § 76 and 83, last sentence; see also 28/01/2016, T‑194/14, AEROSTONE / BRIDGESTONE et al., EU:T:2016:42, § 52);

21. In this regard, for reasons of procedural economy, the Opposition Division based the assessment of the likelihood of confusion on the Bulgarian-speaking part of the relevant EU public, which is a correct approach, since a likelihood of confusion with respect to this part of the public is sufficient. The applicant’s arguments in this respect are, therefore, ungrounded. The Board will, moreover, also base its assessment on the part of consumers in the Member States of the European Union whose languages do not use diacritics, i.e. at least English- and Spanish-speaking consumers (see paragraph 61).

22. As to the relevant public for the assessment of the likelihood of confusion, this is composed of users likely to use both the goods and services covered by the earlier mark and those covered by the mark applied for (01/07/2008, T‑328/05, Quartz, EU:T:2008:238, § 23).

23. As to goods/services intended for the public at large, the relevant public must be deemed to be composed of the average consumer, reasonably well informed and reasonably observant and circumspect (26/04/2007, C‑412/05 P, Travatan, EU:C:2007:252, § 62 and case-law cited therein).

24. On the other hand, the level of attention of the professional section of the public is assumed to be high since said public consists of specialists (see 12/01/2006, T‑147/03, Quantum, EU:T:2006:10, § 62).

25. The perception of the marks in the mind of the average consumer of the category of goods or services in question plays a decisive role in the global assessment of the likelihood of confusion (26/04/2007, C‑412/05 P, Travatan, EU:C:2007:252, § 59).

26. The consumer’s level of attention is likely to vary according to the category of goods or services involved (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 42 and the case-law cited therein).

27. Account should also be taken of the fact that the average consumer has only rarely the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

28. The Opposition Division considered that the goods found to be identical or highly similar were directed at the public at large and that the degree of attention was considered to be average.

29. These findings were contested by the applicant who argues that ‘tyres for commercial vehicles’ are not directed at the public at large. Although it is a fact that commercial vehicles are usually driven by a professional public, this, however, does, not imply that such a public is a specialised public with respect to the goods concerned.

30. In the Board’s view, the relevant public comprises, firstly, the general public, who is composed of, inter alia, car owners (23/04/2013, T‑109/11, Endurace, EU:T:2013:211, § 52) and secondly, a specialised public such as motor vehicle mechanics.

31. Insofar as the professional public is targeted, their level of attention will be high.

32. As to the general public’s degree of attentiveness with respect to ‘tyres’, it is clear from case-law that, even if those goods are not for everyday consumption, their acquisition does not entail in-depth consideration (see also 23/04/2013, T-109/11, Endurace, EU:T:2013:211, § 53 referring to 13/11/2011, T‑424/09, Qualifier, EU:T:2011:735, § 26; see also 28/10/2015, T‑576/13, Mirus, EU:T:2015:810, § 32).

33. On the other hand, the level of attention for ‘wheel trims’ will in general be slightly higher than average given that they may be relatively expensive (see also 15/10/2013, T‑379/12, Lifecycle, EU:T:2013:529, § 24) choosing them may involve the examination of their technical compatibility with wheels (see also 23/04/2013, T‑109/11, Endurace, EU:T:2013:211, § 54) or given that aesthetic considerations may apply since these trims mainly play a decorative function (22/03/2011, T‑486/07, CA, EU:T:2011:104, § 37).

34. It is clear from case-law that, where the relevant public is made up of consumers who are part of the general public and professionals, the group with the lowest level of attention must be taken into account (15/02/2011, T‑213/09, Yorma’s, EU:T:2011:37, § 25; see also, 19/04/2013, T‑537/11, Snickers, EU:T:2013:207, § 27 and the case-law therein cited). It follows therefore, that even for goods and services addressing both the general public and professionals, account must be taken of the level of attention of the consumer who is part of the general public (27/03/2014, T-554/12, Aava Mobile, EU:T:2014:158, § 26; 30/11/2015, T‑718/14, W E / WE, EU:T:2015:916, § 29 ).

35. The level of attention of the relevant public will consequently vary from average to high.

Comparison of the goods

36. In assessing the similarity of the goods or services in question, all the relevant factors relating to the link between those goods or services should be taken into account. Those factors include, among other things, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 23). Other relevant factors can be the distribution channels, the usual origin and the consumer of the goods and services.

37. Rule 2(4) CTMIR (whose second sentence is now included in new Article 28(7) EUTMR) explicitly states that the Nice Classification serves purely administrative purposes and as such does not provide in itself a basis for drawing conclusions as to the similarity or dissimilarity of the goods and services.

38. The reference point is whether the relevant public will perceive the goods or services concerned as having a common commercial origin (04/1172003, T 85/02, Castillo, EU:T:2003:288, § 38) and whether consumers consider it normal that the goods or services are marketed under the same trade mark, which normally implies that a large number of producers or providers are the same (11/07/2007, T‑150/04, Tosca Blu, EU:T:2007:214, § 37).

39. The relevant goods to be compared are the following:

    Class 12 ‑ Tyres; pneumatic tyres; solid tyres; inner tubes for tyres; Class 18 ‑ Bags; wallets; backpacks; umbrellas; Class 25 ‑ Clothing; footwear; headgear; Class 35 ‑ Retail services connected with the sale of tyres, pneumatic tyres, solid tyres, inner tubes for tyres, bags, wallets, backpacks, umbrellas.	Class 12 ‑ Tyres for commercial vehicles; Wheel trims.
    Earlier mark	Contested sign

40. As to the contested ‘tyres for commercial vehicles’, the Board recalls that it is settled case-law that goods or services can be considered as identical when the goods or services designated by the trade mark application are included in a more general category designated by the earlier mark, or, in other words, where the goods or services covered by the earlier mark include the goods or services covered by the trade mark application (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 32-33; 12/12/2002, T-110/01, Hubert, EU:T:2002:318, § 43-44; 18/02/2004, T-10/03, Conforflex, EU:T:2004:46,
    § 41-42; 07/09/2006, T-133/05, Pam-Pim’s Baby-Prop, EU:T:2006:247, § 29; 22/05/2012, T-585/10, Penteo, EU:T:2012:251, § 57; T-29/04, Cristal Castellblanch, EU:T:438, § 51; 29/02/2012, T-525/10, Servo Suo, EU:T:2012:96, § 26; 15/03/2012, T-288/08, Zydus, EU:T:2012:124, § 42). Indeed, the identity between goods or services does not only exist in the case of good or service terms that are identical in terms of wording, but also between a broad generic term and the goods or services covered by that generic term.

41. In view of the above considerations, the Opposition Division correctly found that the contested ‘tyres for commercial vehicles’ are included in the broad category of the earlier ‘tyres’ in Class 12 and that they are therefore identical.

42. As a consequence, the applicant’s arguments that ‘tyres for commercial vehicles’ are not identical to ‘common tyres’ cannot be followed, since the broad term ‘tyres’ also necessarily includes ‘tyres for commercial vehicles’ (see also with respect to different types of ‘tyres’ in Class 12, 13/11/2011, T-424/09, Qualifier, EU:T:2011:735, § 29-30).

43. As to the contested ‘wheel trims’, as correctly pointed out by the opponent, the applicant did not contest the Opposition Division’s findings by which it stated that they are highly similar to the earlier ‘tyres’ in Class 12 since they can coincide in producers, end-users and distribution channels and that, furthermore, they are complementary.

44. A ‘wheel trim’ is a ‘metallic decorative trim over or around the wheels of a motor vehicle’ (Collins English Dictionary). Both ‘wheel trims’ and ‘tyres’ are part of a wheel and they are used in combination with each other, they can be found in the same specialised shops, for example, in car accessory outlets, coincide in distribution channels and target the same end consumer. As a consequence, the Board agrees with the Opposition Division that these goods are highly similar.

Comparison of the signs

45. With regard to the comparison of the signs, the likelihood of confusion must be determined by means of a global appraisal of the visual, phonetic and conceptual similarities between the signs, on the basis of the overall impression given by them, bearing in mind in particular their distinctive and dominant components (11/11/1997, C–251/95, Sabèl, EU:C:1997:528, §23).

46. In general terms, two signs are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (23/10/2002, T–6/01, Matratzen, EU:T:2002:261, § 30 upheld on appeal by order of 28/04/2004, C‑3/03 P, Matratzen, EU:C:2004:233, 12/07/2006, T–97/05, Marcorossi, EU:T:2006:203, § 39 and 22/06/2005, T–34/04, Turkish Power, EU:T:2005:248, § 43, upheld on appeal by order 01/06/2006, C–324/05 P, Turkish Power, EU:C:2006:368).

47. Given the relevance of the issue regarding the dominant element for the assessment of the similarity between the signs, the arguments in this respect must be examined before a comparison of those signs is undertaken (17/02/2011, T‑10/09, F1-Live, EU:T:2011:45, § 37). Accordingly, the comparison of the signs at issue must be conducted by identifying any dominant or negligible elements first in respect of the earlier mark, and then in respect of the contested sign (03/09/2010, T‑472/08, 61 a nossa alegria, EU:T:2010:347, § 57 and the case-law cited therein).

48. With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition, account may be taken of the relative position of the various components within the arrangement of the complex mark (to that effect 23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 35).

49. For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods for which the mark has been registered (03/09/2010, T‑472/08, 61 a nossa alegria, EU:T:2010:347, § 47 and the case-law cited therein).

50. The assessment of the similarity between two signs means more than taking just one component of a composite sign and comparing it with another sign. On the contrary, the comparison must be made by examining each of the signs in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite sign may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the sign are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that sign which members of the relevant public keep in their minds, so that all the other components are negligible in the overall impression created by that sign (20/09/2007, C-193/06 P, Quicky, EU:C:2007:539, § 42-43).

51. The signs to be compared are as follows:

    MAXXIS	MÄXX
    Earlier mark	Contested sign

52. Both signs are word marks consisting of one verbal element, ‘MAXXIS’ and ‘MÄXX’, respectively.

53. It must be noted that for the protection of word marks it is irrelevant whether they are written in capitals or lower-case letters (31/01/2013, T‑66/11, Babilu, EU:T:2013:48, § 57).

Dominant and distinctive elements

54. The Board finds that neither sign has elements which could be considered clearly more distinctive or dominant (visually eye-catching) in comparison to other elements. In the absence of clear dominant or negligible elements, it is the overall impression conveyed by the different components of the signs that must be taken into account (see, by analogy 31/08/2012, R 560/2011-1, JETMAXX (fig.) / Maxx (fig.), § 28).

55. Although the element ‘MAXX’ has no meaning as such, it must be mentioned that the Court has considered that this element (although when used as a suffix), despite the slight misspelling due to the double ‘X’, has a laudatory connotation for a significant part of the public insofar as it refers to the word ‘maximum’, i.e. to a maximum level of performance and efficiency, and is a weak component (15/10/2008, T-305/06 & T‑307/06, Ferromix, Inomix, Alumix, EU:T:2008:444, § 48-49). The Court of Justice, upholding the judgment of the General Court, also referred to the ‘weak distinctive character’ of ‘MAXX’ though did not state that it completely lacked distinctive character (see 15/01/2010, C‑579/08 P, Ferromix, Inomix, Alumix, EU:C:2010:18, § 61).

56. In the Board’s view, since in the earlier mark ‘MAXXIS’ the suffix ‘IS’ is not particularly striking and is not a strong distinguishing element, consumers are, in any event, likely to pay attention to the mark ‘MAXXIS’ as a whole (see, by analogy, 30/09/2004, R 9/2004-1, SYLK / SILKIS, § 32-34).

57. It must be recalled that, first, since the earlier mark is registered, it is necessary to acknowledge automatically a certain degree of distinctiveness to it (24/05/2012, C‑196/11 P, F1-Live, EU:C:2012:314, § 47) and, second, that the opponent’s claim regarding the enhanced distinctiveness of this mark due to intensive use and reputation has to be taken into account (although it will be shown below that it is not necessary to assess that enhanced distinctiveness for the purpose of these proceedings).

58. In addition, even if a significant part of the relevant public were to perceive ‘MAXX’ as referring to ‘maximum’ and therefore in a laudatory way, this is not the case for the whole relevant public (see in this sense the following decisions of the Second Board of Appeal: 14/10/2011, R 2436/2010-2, Baby-MaXX (fig.) / T.K. MAXX et al., § 16; 12/06/2015, R 132/2015-2, MAGIC MAXX, § 18). Particularly as regards Bulgarian-speaking consumers, it must be mentioned that the Bulgarian alphabet is composed of Cyrillic letters. Thus, although Latin letters may be used in advertising, it is not the common way in which Bulgarian consumers are addressed. Moreover, ‘MAXX’ is not a basic word in English which may be known by part of Bulgarian customers at it is an abbreviated misspelling with which Bulgarian consumers are not regularly confronted. Further, it has a double letter ‘X’ which is totally unusual for Bulgarian customers and is not used for the purpose of stressing the word. Finally, the Bulgarian word for ‘maximum’ is ‘максимален’ which does not bear any apparent similarities with either the term ‘MAXX’ or the term ‘maximum’. It follows that Bulgarian consumers are not likely to associate the term in question with the concept of ‘maximum’ (see also 27/07/2015, R 1073/2014-4, NaraMaxx (fig.) / MAXX et al., § 14, referring to 29/01/2014, R 1983/2011-1, Next2Maxx/NEXT et al. and 14/10/2011, R 2436/2010-2, BabyMaXX (fig.) / T.K. MAXX et al.).

59. Moreover. it must be recalled that the weak distinctive character of an element of a complex mark does not necessarily mean that that element cannot constitute a dominant element since, because, in particular, of its position in the sign, or its size, it may make an impression on consumers and be remembered by them (13/06/2006, T‑153/03, Peau de vache, EU:T:2006:157, § 32 and also, to that effect, 13/07/2004, T‑115/02, ‘a’ in a black ellipse, EU:T:2004:234, § 20; 11/02/2015, T‑395/12, Solid Floor, EU:T:2015:92, § 32). In any event, a low level of distinctiveness of an element does not necessarily mean, when its size and position in the sign are taken into account, that that element is negligible in the overall impression produced by that mark (08/02/2011, T‑194/09, Líneas aéreas del Mediterráneo, EU:T:2011:34, § 30; 03/09/2010, T‑472/08, 61 a nossa alegria, EU:T:2010:347, § 49 and the case-law cited therein).

60. Consequently, having regard to the above findings, even bearing in mind the possibly weak character of the element ‘MAXX’ for a significant part of the relevant public, it is obvious that this is not the case for – at least – Bulgarian consumers, and that it is an element which is likely to make an impression on the majority of the relevant consumers and be remembered by them (13/12/2007, T‑134/06, Pagesjaunes.com, EU:T:2007:387, § 54 and the case-law cited therein).

61. The applicant’s argument that the ‘visually eye-catching and uncommon diaeresis is a significant element which is clearly dominant as the first vocal in the sign and thus dominates the contested sign’ cannot be followed. The umlaut over the ‘Ä’ of the contested sign cannot be considered to attract, in particular, the attention of consumers in the Member States of the European Union whose languages do not use diacritics, at least on that letter (e.g. the English-, Spanish- and Bulgarian-speaking public), and thus it does not alter the fact that the letters ‘A’ and ‘Ä’ are visually almost identical (13/11/2011, T-88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 30; 03/05/2016, Natür-bal / NATURVAL, T‑503/15, ECLI:EU:T:2016:261, § 33); see also 23/11/2015, R 2474/2014-4, FashionID / ÏD, § 14; 19/07/2016, R 1747/2015-4, BÜSCH / BUSCH, § 33).

62. In assessing the visual and phonetic similarity of signs consisting exclusively of words, account may be taken, in particular, of their length and the number and order of their letters and syllables (02/06/2010, T‑35/09, Procaps, EU:T:2010:2002, § 57 and the case-law cited therein).

63. Visually, as noted by the Opposition Division, the signs are similar to the extent that they coincide in the combination of letters ‘MAXX’. The signs differ in the diaeresis of the letter ‘Ä’ in the contested sign and the letters ‘IS’ in the earlier mark.

64. Although there is a risk in relying too much on a mechanical quantitative evaluation, it is a fact that counting the total number of letters, identifying the amount of identical letters and comparing their order in the respective marks, can provide certain guidance. Furthermore, the Court has confirmed that what matters in the assessment of the visual similarity of two word marks is, rather, the presence, in each of them, of several letters in the same order (25/03/2009, T‑402/07, Arcol II, EU:T:2009:85, § 83; 21/01/2015, T‑685/13, Blueco, EU:T:2015:38, § 33).

65. Apart from the fact that the signs coincide in four letters ‘MAXX’, set out in the same order, it is particularly important that these letters form the beginning of the earlier mark and that they are the only letters comprising the contested sign.

66. The average consumer will first take note of the identical element ‘MAXX’ since words are normally read from left to right and from top to bottom (06/10/2004, T‑117/03 – T‑119/03 and T-171/03, NL, EU:T:2004:293, § 28).

67. Furthermore, it must be recalled that, although the issue of the beginning of a mark cannot call into question the principle that the examination of the similarity of trade marks must take into account the overall impression produced by them (28/06/2008, T‑79/07, Polaris, EU:T:2008:230, § 42 and the case-law cited therein), consumers generally pay greater attention to the beginning of a mark rather than to the end (17/03/2004, T‑183/02 and T‑184/02, Mundicor, § 51; 04/10/2011, T‑421/10, Rosalia de Castro, § 38). In the present case, as said, the Board considers it particularly relevant that the shared element ‘MAXX’ appears at the beginning of the earlier mark.

68. The umlaut in contested sign does not alter the fact that the letters ‘A’ and ‘Ä’ are visually almost identical (03/05/2016, Natür-bal / NATURVAL, T‑503/15, ECLI:EU:T:2016:261, § 33 referring to 13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 30).

69. The additional last letters ‘IS’ in the earlier mark are not enough to offset the near-identical visual impact of the letters ‘MAXX’ / ‘MÄXX’, despite the fact that there is an extra syllable in the earlier mark (see, by analogy, 13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 31; see also, by analogy, 05/12/2007, R 762/2007-2 – MAXXIUM / MAXIM, § 20).

70. Moreover, since both signs are word marks, the applicant’s argument with respect to the earlier mark’s graphic representation of ‘bold cramped cursive letters have a major impact’ cannot be sustained.

71. Therefore, the Board concludes that the signs are visually similar.

72. Aurally, the pronunciation of the signs coincides in the sound of the letters ‘MAXX’ present identically in both signs and differs in the sound of the letters ‘IS’ present in the earlier sign.

73. It is a fact that the contested sign has a diaeresis on the letter ‘Ä’. However, as indicated above, given that the relevant territory is that of the European Union, it is sufficient, in order for there to be a phonetic similarity between the signs at issue, that one part of consumers perceives the letter ‘Ä’ as the letter ‘A’ and that ‘MAXX’ is pronounced in the same way (see, by analogy, 13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 32).

74. That is precisely the case in part of the European Union, notably as regards English-, Spanish- and Bulgarian-speakers, where the effect of the umlaut over the letter ‘Ä’ of the contested sign will not alter the overall phonetic impression produced by the mark on the average consumer, since the languages in question do not have the letter ‘ä’ (see, to that effect, 13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 31 referring to 15/03/2006 T‑35/04, Ferrero, EU:T:2006:82, § 61; see also 03/05/2016, Natür-bal / NATURVAL, T‑503/15, ECLI:EU:T:2016:261, § 39).

75. The pronunciation of the additional ending letters ‘IS’ in the earlier mark is not sufficient to offset the identical pronunciation of the letters ‘MAXX’ for those consumers that do not pronounce the diaeresis, particularly bearing in mind that, in principle, consumers tend to pay more attention to the beginnings of marks.

76. As a consequence, the signs are phonetically similar.

77. Conceptually, the signs at issue have no meaning for at least part of the relevant public and therefore the conceptual comparison will not influence the assessment of the likelihood of confusion.

78. Also, even if the respective signs at issue may have a particular meaning in some languages of the European Union, this would be irrelevant for the purposes of the conceptual comparison since, as mentioned, the relevant territory is that of the European Union as a whole (see, by analogy, 13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 44).

79. The applicant’s argument that the contested sign will be perceived as ‘MAX’ and the earlier mark has no meaning, cannot be followed. In any event, those consumers that would perceive the element ‘MAX’ in the contested sign, and attribute a certain meaning to it, would also perceive it in such way in the earlier mark.

80. As to the element ‘MAXX’, although it has no meaning as such, a significant part of consumers may associate it with ‘maximum’. Another part (e.g. Bulgarian-speaking consumers, see paragraph 58) may consider it a fanciful word due to the presence of the double ‘X’ and will not understand it as referring to ‘maximum’. Another part may perceive it as referring to, for example, the names ‘Max’ or ‘Maximilian’. For those consumers that associate the element ‘MAXX’ with ‘maximum’ (or with the names ‘Max’ or ‘Maximilian’), both signs will share this semantic connotation.

81. Therefore, the conceptual comparison remains neutral for part of the relevant public, and the signs have a certain conceptual similarity for that part of the relevant public that perceives the element ‘MAXX’ with the same semantic connotation.

82. Consequently, overall, the signs are visually and aurally similar for those consumers whose languages do not use diacritics, whereas the conceptual comparison remains neutral for part of these consumers, and will have a certain conceptual similarity for another part.

Distinctive character of the earlier mark

83. In determining the degree of distinctive character of a trade mark, an overall assessment has to be made of the greater or lesser capacity to identify the goods for which it has been registered as coming from a particular undertaking.

84. Account should be taken of the inherent characteristics of the mark, including the fact that it does or does not contain an element that is descriptive of the goods for which it has been registered and other criteria; in particular, how intensive, geographically widespread and long-standing the use of the mark has been (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 22 and 23).

85. As such, the distinctive character of a trade mark can be appraised only, firstly by reference to the goods or services in respect of which registration is sought and, secondly, by reference to the way it is perceived by the relevant public.

86. The opponent explicitly claimed that its earlier mark is particularly distinctive by virtue of intensive use or reputation. However, as also rightly done by the Opposition Division, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not need to be assessed; the distinctiveness of the earlier mark can rest on its distinctiveness per se. Since the earlier mark as a whole does not have any meaning in relation to any of the earlier goods and services in question (as also acknowledged by the applicant on page 3 of its statement of grounds) the inherent distinctiveness of the earlier mark must be seen as normal, despite the presence of the weak element ‘MAXX’ for a significant part of the relevant public (see also 12/06/2015, R 132/2015-2, MAGIC MAXX and 11/12/2012 – R 735/2012-2, MAXXPRO).

Global assessment

87. The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (eighth recital of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18 and 11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 22).

88. Such a global assessment of a likelihood of confusion implies some interdependence between the relevant factors, and in particular, the similarity between the trade marks and between the goods or services. Accordingly, a greater degree of similarity between the goods may be offset by a lower degree of similarity between the marks, and vice versa (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 20).

89. Furthermore, according to settled case-law, the average consumer only rarely has the chance to make a direct comparison between the different marks and must place his or her trust on the imperfect picture of them that he or she has kept in his or her mind (see case-law in paragraph 27).

90. In the present case, the contested ‘tyres for commercial vehicles’ and ‘wheel trims’ were found identical and highly similar, respectively, to the earlier ‘tyres’ in Class 12.

91. The distinctiveness of the earlier mark can be considered normal.

92. The level of attentiveness of the relevant consumers for the goods was found to vary from average to high, depending on the products concerned.

93. The signs are visually and phonetically similar for for those consumers whose languages do not use diacritics, at least, for the English-, Spanish- and Bulgarian-speaking public; the conceptual comparison remains neutral for part of that public and there is a certain conceptual similarity for another part of that public.

94. The Board considers that the coincidence in the letters ‘MAXX’, which form the only letters of which the contested sign is composed and the initial four letters of the earlier sign (which consists of six letters), leads to an overall similarity between the signs.

95. It must be borne in mind in that respect that consumers are generally deemed to pay greater attention to the beginning of a mark than to its end, the initial part of a mark normally having a great impact, both visually and aurally (see case-law cited in paragraph 67).

96. Therefore, even though the signs also exhibit differences in their last letters ‘IS’ in the earlier mark and the diaeresis on the letter ‘Ä’ in the contested sign, these differences are unable to outweigh the overall similarity between the marks at issue considered as a whole, due to the coincidence in the element ‘MAXX’, which is placed at the beginning and occupies a significant proportion of the earlier mark.

97. As said above, it suffices in order for registration of a trade mark to be refused that a relative ground for refusal exists only in part of the European Union. In the present case, the Board considers that the part of the European Union for which a likelihood of confusion between the contested sign and the earlier mark exists is composed of the part of the public whose languages do not use umlauts (13/11/2011, T‑88/10, GLÄNSA / GLANZ, EU:T:2011:368, § 30; 03/05/2016, Natür-bal / NATURVAL, T‑503/15, ECLI:EU:T:2016:261, § 33), which consists, at least, of the English-, Spanish- and Bulgarian-speaking public.

98. Furthermore, it should be noted that the fact that the relevant public’s level of attention is high for part of the goods concerned is not in any event sufficient to rule out a likelihood of confusion. The simple fact that experts pay a high degree of attention, when they choose goods, does not mean that they do not also take into account the fact that the two marks may have the same origin owing to similarities between them on a commercial level. Accordingly, the fact that the public is made up of professionals or (for ‘wheel rims’) the general public with a slightly higher attention level is not sufficient to rule out the possibility that they may think that the goods come from the same undertaking or, as the case may be, from economically-linked undertakings (see 17/09/2015, T‑323/14, Bankia, EU:T:2015:642, § 77 and the case-law cited therein).

99. In light of the foregoing, stressing herewith the certain interdependence between the factors to be taken into account and, in particular, the similarity between the trade marks and the identity and high similarity between the goods, the Board considers that there exists the likelihood that the relevant public (which consists of at least, of part of the English-, Spanish- and Bulgarian-speaking public) will be led to believe that the goods designated by the signs at issue come from the same undertaking or from economically-linked undertakings.

100. Accordingly, the Opposition Division did not err in rejecting the applicant’s trade mark on the basis of Article 8(1)(b) EUTMR for the contested goods, as there is indeed a likelihood of confusion between the trade mark applied for and the earlier EUTM.

101. Since the opposition is fully successful on the basis of the Article 8(1)(b) EUTMR, assuming the earlier EUTM’s normal degree of distinctiveness, there is no need to assess the enhanced degree of distinctiveness of this earlier mark, nor is there a need to assess the merits of the opposition on the basis of the other earlier marks or to further examine the opposition insofar as based on the ground of Article 8(5) EUTMR.

102. The appeal is dismissed.

Costs

103. Pursuant to Article 85(1) EUTMR, the applicant, as the losing party, must bear the costs of the appeal proceedings. Pursuant to Article 85(6) EUTMR and Rule 94(3), last sentence, CTMIR, the applicant is therefore ordered to reimburse the costs of professional representation for the appeal proceedings at the level laid down in Rule 94(7)(d) CTMIR (EUR 550). As to the opposition proceedings, the Opposition Division ordered the applicant to bear the opponent’s costs in the amount of EUR 650. This remains unchanged.

104. The total amount is EUR 1 200.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Rejects the contested EUTM application in its entirety;

3. Orders the applicant to bear the total amount of EUR 1 200 in respect of the opponent’s costs in the opposition and appeal proceedings.

Signed T. de las Heras

Signed R. Ocquet

Signed C. Negro

Registrar: Signed H.Dijkema