OPPOSITION No B 2 652 850

Gloria S.A., Av. República de Panamá 2461, Urb. Santa Catalina, Lima 13, Lima, Peru (opponent), represented by Jacobacci Coralis Harle, 32 rue de l'Arcade, 75008 Paris, France (professional representative)

a g a i n s t

SFC Superfood Club GmbH & Co. KG, Universitätsstraße 60, 44789 Bochum, Germany (applicant), represented by Lukas Fritz Emil Tanner, RevierIP, Neustr. 17, 44787 Bochum, Germany (professional representative).

On 25/04/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 652 850 is partially upheld, namely for the following contested goods and services:

Class 30: Honey, Non-alcoholic iced tea-based mixed beverages; Iced tea, in particular iced tea with lemonade, honey and herbs; Flavourings, other than essential oils, for beverages; Flavorings, other than essential oils; Tea-based beverages; Infusions, not medicinal, not in the form of tea bags; The aforesaid goods in class 30 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings.

Class 32: Non-alcoholic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Non-alcoholic carbonated fruit beverages comprising honey and herbs; Non-alcoholic carbonated honey-based beverages; Pre-mixed non-alcoholic carbonated beverages based on lemonade, honey and herbs; Non-alcoholic cocktails based on carbonated beverages comprising honey and herbs; Carbonated energy drinks comprising honey and herbs; Essences for making carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Isotonic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Lemonades comprising honey, in particular herbal lemonades; Syrups for lemonade based on honey and herbs; Preparations for making beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Preparations for making liqueurs comprising honey, herbs and fruit flavourings, in particular lime flavourings; The aforesaid goods in class 32 not based on milk of almonds and explicitly other than fruit juices and juice beverages.

Class 33: Alcoholic fruit extracts for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; none of the aforesaid goods based on wine or grapes.

Class 35: Retailing via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; wholesaling via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; retailing in the fields of fruit flavourings, in particular lime flavourings; retailing in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; wholesaling in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; online or catalogue mail order in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings.

2. European Union trade mark application No 13 758 024 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 all the goods and services of European Union trade mark application No 13 758 024 (figurative mark). The opposition is based on European Union trade mark registration No 10 106 078 (figurative mark). The opponent invoked Article 8(1)(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:

Class 30: Pastry, namely, Panettone; Coffee, and coffee substitutes.

Class 32: Mineral and aerated waters and other non-alcoholic beverages; Fruits drinks and fruit juices; Syrups and other preparations for making beverages.

The contested goods and services are the following:

Class 3: Aromatic essential oils; Flavourings for beverages [essential oils]; Ethereal essences; Essential oils of lemon; The aforesaid goods in class 3 for carbonated beverages comprising honey, herbs and fruit flavourings.

Class 5: Herbal teas for medicinal purposes; Mineral water salts; The aforesaid goods in class 5 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings.

Class 30: Honey, Non-alcoholic iced tea-based mixed beverages; Iced tea, in particular iced tea with lemonade, honey and herbs; Flavourings, other than essential oils, for beverages; Flavorings, other than essential oils; Tea-based beverages; Infusions, not medicinal, not in the form of tea bags; The aforesaid goods in class 30 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings.

Class 32: Non-alcoholic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Non-alcoholic carbonated fruit beverages comprising honey and herbs; Non-alcoholic carbonated honey-based beverages; Pre-mixed non-alcoholic carbonated beverages based on lemonade, honey and herbs; Non-alcoholic cocktails based on carbonated beverages comprising honey and herbs; Carbonated energy drinks comprising honey and herbs; Essences for making carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Isotonic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Lemonades comprising honey, in particular herbal lemonades; Syrups for lemonade based on honey and herbs; Preparations for making beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Preparations for making liqueurs comprising honey, herbs and fruit flavourings, in particular lime flavourings; The aforesaid goods in class 32 not based on milk of almonds and explicitly other than fruit juices and juice beverages.

Class 33: Alcoholic fruit extracts for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Carbonated alcoholic beverages flavoured with fruit, comprising honey, herbs and fruit flavourings, in particular lime flavourings; None of the aforesaid goods based on wine or grapes.

Class 35. Retailing via the internet in the fields of refrigerating apparatus, dietetic food, dietary supplements for humans, all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Retailing via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Wholesaling via the internet in the fields of refrigerating apparatus, dietetic food, dietary supplements for humans, all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Wholesaling via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Retailing in the fields ofand fruit flavourings, in particular lime flavourings; Retailing in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Wholesaling in the fields of refrigerating apparatus, dietetic food, dietary supplements for humans, all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Wholesaling in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Commercial management for licensing goods and services, for others, in the field of carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Online or catalogue mail order in the fields of refrigerating apparatus, dietetic food, dietary supplements for humans, all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Online or catalogue mail order in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings, publication of printed matter, including in electronic form, for advertising purposes, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; The bringing together of goods, namely refrigerating apparatus, dietetic food, dietary supplements for humans, all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings.

Class 39: Bottling services; Refrigerator rental, in particular all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings.

Class 41: Providing of non-downloadable electronic publications online, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Publication of electronic books and periodicals online, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Publication of printed matter, including in electronic form, other than for advertising purposes, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Publication of periodicals and books in electronic form, including on the internet, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; Writing of texts, other than publicity texts, solely in connection with beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The term ‘in particular’, used in the applicant’s list of goods and services, indicates that the specific goods and services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107).

However, the term ‘namely’, used in the applicant’s and the opponent’s lists of goods and services to show the relationship of individual goods and services to a broader category, is exclusive and restricts the scope of protection only to the goods and services specifically listed.

As a preliminary remark, it is to be noted that according to Article 33(7) EUTMR, goods or services are not regarded as being similar to or dissimilar from 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.

Contested goods in Class 3

The contested goods in this Class and the opponent’s goods in Classes 30 and 32 fall within two distinguishable sub-sets of the food and drink industry. On the one side are the ethereal essences and essential oils for the production of drink products and on the other, the actual food and drink products themselves and the semi-finished preparations for making beverages.

Therefore, the contested aromatic essential oils; flavourings for beverages [essential oils]; ethereal essences; essential oils of lemon; the aforesaid goods in class 3 for carbonated beverages comprising honey, herbs and fruit flavourings are dissimilar to all the opponent’s goods. Even if they might be complementary, they do, as explained above, not have the same nature, purpose or methods of use, nor the same distribution channels or relevant public.

Contested goods in Class 5

The contested herbal teas for medicinal purposes; the aforesaid goods in class 5 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings are deemed to be dissimilar to all the opponent’s goods in Class 32. The contested goods are products which are consumed for a medical or paramedical purpose. Consequently, these include products which are derived from traditional medicine as well as from alternative medicine. The earlier goods, in contrast, are inter alia non-alcoholic beverages. In addition to a different nature, they also differ in purpose. The applicant’s goods focus on enhancing health whereas the opponent’s ones serve other purposes, such as quenching thirst. The contested goods are also dissimilar to the opponent’s goods in Class 30, as neither do they have the same nature, purpose or methods of use. Furthermore, they are not produced by the same undertakings, distributed through the same channels nor have the same relevant public. They are not complementary or in competition.

Even the contested mineral water salts; the aforesaid goods in class 5 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings are dissimilar to all the opponent’s goods. The goods differ in their natures and purposes. While the contested goods will mainly be distributed through pharmacies or chemist’s shops, the opponent’s goods are most likely to be retailed in supermarkets. Even if the goods might be complementary, they differ in the usual origin, nature, distribution channels and furthermore, they are not in competition.

Contested goods in Class 30

The contested honey, non-alcoholic iced tea-based mixed beverages; iced tea, in particular iced tea with lemonade, honey and herbs; tea-based beverages; infusions, not medicinal, not in the form of tea bags; the aforesaid goods in class 30 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings are at least similar to the opponent’s other non-alcoholic beverages in Class 32. They share the same distribution channels, target the same relevant public and can be produced by the same undertakings. Furthermore, they are in competition.

The contested flavourings, other than essential oils, for beverages; flavorings, other than essential oils; the aforesaid goods in class 30 in the form of or for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings are used to give new or additional tastes to beverages. Therefore, all these goods and the opponent’s syrups and other preparations for making beverages in Class 32 can all be used in the process of making beverages and to give them a required taste, and they have the same methods of use. Furthermore, they might be produced by the same producers and they target the same relevant public. Therefore, they are similar.

Contested goods in Class 32

The contested non-alcoholic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; non-alcoholic carbonated fruit beverages comprising honey and herbs; non-alcoholic carbonated honey-based beverages; pre-mixed non-alcoholic carbonated beverages based on lemonade, honey and herbs; non-alcoholic cocktails based on carbonated beverages comprising honey and herbs; carbonated energy drinks comprising honey and herbs; isotonic beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; lemonades comprising honey, in particular herbal lemonades; the aforesaid goods in class 32 not based on milk of almonds and explicitly other than fruit juices and juice beverages are included in the broad category of the opponent’s other non-alcoholic beverages. Therefore, they are identical.

The contested essences for making carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; syrups for lemonade based on honey and herbs; preparations for making beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; preparations for making liqueurs comprising honey, herbs and fruit flavourings, in particular lime flavourings; the aforesaid goods in class 32 not based on milk of almonds and explicitly other than fruit juices and juice beverages are various essences, flavourings and preparations for making drinks. Therefore, all these drinks are included in the broad category of, or overlap with, the opponent’s syrups and other preparations for making beverages and are identical.

Contested goods in Class 33

The contested alcoholic fruit extracts for carbonated beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; none of the aforesaid goods based on wine or grapes are similar to the opponent’s syrups and other preparations for making beverages in Class 32. Both types of goods are used to make beverages or complement them with a certain flavour. They have the same overall purpose, namely the preparation of beverages. Moreover, they have the same methods of use and may have the same distribution channels. Although preparations for making alcoholic beverages are, in general, mainly destined for manufacturers, some are also sold as cooking ingredients or for making alcoholic drinks at home. Finally, these goods could be manufactured by the same undertakings.

The contested carbonated alcoholic beverages flavoured with fruit, comprising honey, herbs and fruit flavourings, in particular lime flavourings; none of the aforesaid goods based on wine or grapes are alcoholic beverages. These are dissimilar to all the opponent’s goods, which consists of pastry and coffee (and substitutes therefore) in Class 30 and non-alcoholic beverages and preparations for making beverages in Class 32. They do not have the same nature and purpose, are not produced by the same undertakings or distributed through the same channels. Furthermore, they are not complementary or in competition.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar to a low degree to those 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.

The goods covered by the retail services and the specific goods covered by the earlier mark have to be identical in order to find similarity, that is to say, they must either be exactly the same goods or fall under the natural and usual meaning of the category.

The same principles apply to services rendered in connection with the other types of services that consist exclusively of activities revolving around the actual sale of goods, such as retail store services, wholesale services, internet shopping, catalogue and mail order services in Class 35.

Therefore, the contested retailing via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; wholesaling via the internet in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; retailing in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; wholesaling in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings; online or catalogue mail order in the fields of beverages comprising honey, herbs and fruit flavourings, in particular lime flavourings are similar to a low degree to the opponent’s other non-alcoholic beverages.

The contested retailing in the fields of fruit flavourings, in particular lime flavourings are similar to a low degree to the opponent’s syrups and other preparations for making beverages in Class 32, where such flavourings are included.

All other services in this Class, listed above, are dissimilar to all the opponent’s goods. Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Furthermore, the goods and services have different methods of use and are neither in competition nor necessarily complementary. Similarity between retail and other similar sale services of specific goods covered by one mark and specific goods covered by another mark can only be found where the goods involved in the retail services and the specific goods covered by the other mark are identical, as described above. This condition is not fulfilled in the present case for the remaining contested services in Class 35.

Contested services in Class 39

The contested bottling services are specific and specialised services for manufacturers provided by specialised undertakings. Manufacturers of beverages do not provide these services to third parties. These services are not complementary to the opponent’s goods, nor are they in competition. Therefore, these services are dissimilar to the opponent’s goods.

The contested refrigerator rental, in particular all of the aforesaid for carbonated beverages comprising honey, herbs and fruit flavourings are dissimilar to the opponent’s goods, since they do not have the same nature, purpose and producers/providers, nor are they complementary or in competition.

Contested services in Class 41

The contested services in Class 41, listed above, are all dissimilar to all the opponent’s goods. Even though the subject of said publications and writing services are beverages and their flavourings, this is not enough for finding them similar to the opponent’s goods, even though they include beverages and preparations for making beverages. Publication services are fundamentally different in nature and purpose from the manufacture of the opponent’s goods. They do not have the same producers/providers, distribution channels or relevant public. Moreover, they are not complementary or in competition.

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, the goods and services found to be identical or similar to various degrees are directed partly at the public at large and partly at business customers (e.g. in the case of wholesale services). The degree of attention is average.

3. The signs

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 earlier mark is a figurative mark consisting of the verbal element ‘GLORIA’ in slightly stylised dark upper case letters over a red carnation-like flower, with a depiction of a cow’s head in the centre of the flower. The lower part of the flower is placed on a dark blue rectangle, whereas the background of the upper part of the mark is white. A significant part of the relevant public will perceive the verbal element in the mark as a female given name that is widely used and known in the European Union. The verbal element and the figurative elements of the flower and the cow’s head all have an average degree of distinctive character in relation to the relevant goods, as they do not describe the goods or any of their characteristics.

The contested sign is a figurative mark consisting of the verbal element ‘GLORIA’ in highly stylised white and grey letters, but for the letter ‘O’ which is in grey with green borders, resembling a leaf. Underneath this verbal element are the English words ‘make me feel good, make me feel alright’ in small, white, slightly stylised lower case letters. The verbal elements are placed on a black rectangular background.

The assessment of the verbal element ‘GLORIA’ of the earlier mark equally applies to the contested sign, and this verbal element has an average degree of distinctiveness for the relevant goods and services. The sentence ‘make me feel good, make me feel alright’ will be understood as such by the English-speaking public. The figurative element of the ‘O’ resembling a leaf - which is a symbol of nature - will be perceived as such by at least a part of the public. Bearing in mind that the relevant goods and services are beverages, flavourings for these and retail and other sale services for beverages and flavourings, these elements are weak as laudatory (the English sentence ‘make me feel good, make me feel alright’) or descriptive of the characteristics (the leaf as a symbol of nature) for all the relevant goods and services.

In the earlier sign, none of the elements could be considered dominant (visually eye-catching) than other elements.

In the contested sign, the verbal element ‘GLORIA’ is the dominant element as it is the most visually eye-catching.

When signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T‑312/03, Selenium-Ace, EU:T:2005:289, § 37).

Visually, the signs coincide in the distinctive verbal element ‘GLORIA’. However, they differ in the additional verbal elements ‘make me feel good, make me feel alright’ of the contested sign, which are weak for part of the public and written in a much smaller typeface, and in the figurative elements of the signs including the stylisation of the verbal elements. The stylisation of the letter ‘O’ in the contested sign is also weak.

Therefore, the signs are visually similar to an average degree.

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 distinctive letters ‛GLORIA’, present identically in both signs. The pronunciation differs in the sound of the verbal element ‘make me feel good, make me feel alright’ (if even pronounced, since ‘GLORIA’ is dominant) of the contested sign, which is however weak, as described above.

Therefore, the signs are aurally similar to a degree higher than average.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs will be perceived as a female name, ‘GLORIA’, by the relevant public. However, the additional figurative elements also convey concepts, such as the flower and a cow’s head in the earlier mark, and the additional words ‘make me feel good, make me feel alright’ (for the part of the public that understands it) and the figurative element of a leaf (for the part of the public that perceives it) of the contested sign, which however are all weak. Therefore, the marks are deemed conceptually similar to a higher than average degree for the entire relevant public.

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. In the present case, the earlier trade mark 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.

5. Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

The goods and services are partly identical, partly similar to various degrees and partly dissimilar. The distinctiveness of the earlier mark is normal.

The signs are visually similar to an average degree and aurally and conceptually similar to a degree higher than average.

The signs coincide in the distinctive verbal element ‘GLORIA’. The difference arising from the figurative elements of both marks, the stylisation of the letters and the additional weak verbal elements (for part of the public) of the contested sign are not sufficient to offset the similarities between the signs and exclude a likelihood of confusion.

Account is taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical or similar, even to a low degree, to those of the earlier trade mark. The considerable similarity of the signs outweighs the low similarity of these services.

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) EUTMR, the opposition based on this Article and directed at these goods and services cannot be successful.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful for only some 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

Anna BAKALARZ

Lena FRANKENBERG GLANTZ

Katarzyna ZANIECKA

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.