OPPOSITION No B 2 585 712

Sociedad de Compras Modernas, S.A. Socomo, Carretera de Albalat, s/n Edificio Pryca, 46600 Alcira (Valencia), Spain (opponent), represented by Clarke, Modet y Cía. S.L., Rambla de Méndez Núñez, 12 - 1º Puerta 2 bis, 03002 Alicante, Spain (professional representative)

a g a i n s t

Amsterdam Commodities, N.V., Beursplein 37, 3011 AA Rotterdam, The Netherlands (applicant), represented by Müller Schupfner & Partner Patent- und Rechtsanwaltspartnerschaft mbB, Schellerdamm 19, 21079 Hamburg, Germany (professional representative).

On 03/02/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 585 712 is partially upheld, namely for the following contested goods and services:

Class 29: Edible nuts, preserved, spiced or otherwise prepared nuts and seeds; dried and conserved fruits and vegetables; edible oils and fats; jellies, jams, compotes; artichokes [preserved]; fruit puree; pastes made from nuts; pastes made from edible seeds; edible olives.

Class 30: Oilseed flour for food; essences for food [other than essential oils]; baking spices; confectionery; processed grains, starches, and goods made thereof; baking preparations and yeasts; prepared baking mixes; flavourings, other than essential oils; confectionery from nuts and/or seeds; cereal preparations; spices; spice blends; flours including nut or seed flours; linseeds for human consumption; caraway seeds; sesame seeds.

Class 31: Grains and agricultural, horticultural and forestry products; fresh fruits and vegetables; seeds such as sunflower seeds, pumpkin seeds or poppy seeds; natural plants and flowers; foodstuffs for animals; nuts (untreated) and nut kernels; unprocessed millet.

Class 35: Arranging and concluding commercial transactions for others; arranging contracts for the buying and selling of goods; business management; business administration; office functions; business advice on the organization and management of companies; outsourcing services (business assistance); outsourcing services in the nature of arranging procurement of goods for others; retail services or wholesale services in relation to tea, seeds, essential oils, oils and fats, nuts, spices, bakery products, grains, flavouring substance, agricultural products and horticultural products, also via the internet.

2. European Union trade mark application No 13 905 922 is rejected for all the above goods and services. It may proceed for the remaining services.

3. Each party bears its own costs.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 13 905 922, namely against all the goods and services in Classes 29, 30, 31 and 35. The opposition is based on European Union trade mark registrations No 4 452 934 and No 555 987. The opponent invoked Article 8(1)(b) EUTMR.

Preliminary remarks

In accordance with Rule 18(1) EUTMIR, when the opposition is found admissible pursuant to Rule 17 EUTMIR, the Office shall send a communication to the parties informing them that the opposition proceedings shall be deemed to commence two months after receipt of the communication.

In accordance with Rule 20(2) EUTMIR, if the opposition is not rejected pursuant to Rule 20(1) EUTMIR, the Office shall communicate the submission of the opposing party to the applicant and shall invite him to file his observations within a period specified by the Office.

In accordance with Rule 20(3) EUTMIR, if the applicant submits no observations, the Office shall base its ruling on the evidence before it.

By notification of 16/12/2015, the Office set the date for the commencement of the adversarial part of the opposition proceedings and informed the parties about the relevant time limits. Specifically, the time limit for the applicant to submit its observations in reply to the opposition was due to expire on 21/06/2016.

According to Office practice, any time limit will be deemed to expire at midnight on the final day of the given time limit (local time in Alicante, Spain).

The applicant submitted its observations, including a request for proof of use of the two earlier marks on which the opposition is based in accordance with Article 42(2) EUTMR. The observations were sent by fax, in two transmissions. However, they were received at the Office on 22/06/2016. Specifically, according to Office fax server records, the first fax (ID F23570316) was received on 22/06/2006 at 00:02; the second fax (ID F23570315) was received on 22/06/2006 at 00:04. In addition, the applicant submitted the same observations electronically (by eComm), claiming that there had been fax problems; the eComm reached the Office on 22/06/2016.

By communications of 04/07/2016, the Office forwarded the applicant’s observations to the opponent for information purposes only and informed the parties that the applicant’s submissions will not be taken into account because they were not received within the time limit, in accordance with Rule 20(2), (3) and (4) EUTMIR. The opposition proceedings were closed.

By letter of 15/07/2016, the applicant contested the finding of the Office that its first submissions were received late, namely after 21/06/2016. The applicant pointed out that the fax transmission was started on 21/06/2016 at 23:53 and that according to its fax reports the transmission must have reached the Office before midnight.

In that regard, it must be clarified that the filing date/time of incoming faxes is deemed to be the time or receipt in Office fax servers, taking into account when the Office received the fax, and not when the transmission was started.

Therefore, the applicant’s belated submissions cannot be taken into account. The Office informed the applicant about this on 12/08/2016.

In accordance with Article 82 EUTMR, any party to the proceedings before the Office who has omitted to observe a time limit vis-à-vis the Office may, upon request, obtain the continuation of proceedings, provided that at the time the request is made the omitted act has been carried out. The request for continuation of proceedings shall be admissible only if it is presented within two months following the expiry of the unobserved time limit. The request shall not be deemed to have been filed until the fee for continuation of the proceedings has been paid.

On 30/08/2016, the applicant requested continuation of proceedings pursuant to Article 82 EUTMR, with the intention to request that the opponent furnish proof of use of the earlier marks.

However, as set out in Office letter of 24/10/2016, the applicant’s request for continuation of proceedings is inadmissible, because the request was filed more than two months after the expiry of the unobserved time limit. Consequently, the applicant failed to obtain continuation of proceedings.

The Opposition Division will take a decision based on the evidence before it.

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.

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 European Union trade mark registration No 4 452 934.

1. The goods and services

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

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals; malt.

Class 35: Import and export of foodstuffs; commercial retailing and retailing via global computer networks of foodstuffs.

Class 39: Transport; packaging and storage of goods; travel arrangement; distribution of foodstuffs.

The contested goods and services are the following:

Class 29: Edible nuts, preserved, spiced or otherwise prepared nuts and seeds; dried and conserved fruits and vegetables; edible oils and fats; jellies, jams, compotes; artichokes [preserved]; fruit puree; pastes made from nuts; pastes made from edible seeds; edible olives.

Class 30: Oilseed flour for food; essences for food [other than essential oils]; baking spices; confectionery; processed grains, starches, and goods made thereof; baking preparations and yeasts; prepared baking mixes; flavourings, other than essential oils; confectionery from nuts and/or seeds; cereal preparations; spices; spice blends; flours including nut or seed flours; linseeds for human consumption; caraway seeds; sesame seeds.

Class 31: Grains and agricultural, horticultural and forestry products; fresh fruits and vegetables; seeds such as sunflower seeds, pumpkin seeds or poppy seeds; natural plants and flowers; foodstuffs for animals; nuts (untreated) and nut kernels; unprocessed millet.

Class 35: Arranging and concluding commercial transactions for others; arranging contracts for the buying and selling of goods; marketing; advertising; business management; business administration; office functions; business advice on the organization and management of companies; providing advice on issues of human resources; marketing; public relations; business consultancy and advisory services also relating to franchising; outsourcing services (business assistance); outsourcing services in the nature of arranging procurement of goods for others; retail services or wholesale services in relation to tea, seeds, essential oils, oils and fats, nuts, spices, bakery products, grains, flavouring substance, agricultural products and horticultural products, also via the internet.

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 29

In Class 35, the opponent’s services include commercial retailing and retailing via global computer networks of foodstuffs. In principle, 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. These principles apply to the services rendered in connection with different forms exclusively consisting of activities around the actual sale of goods, such as online shopping.

All of the contested goods in this class are encompassed by the broad term foodstuffs, despite the fact that some of the contested goods, for instance seeds, do not usually constitute a meal but are used as additives. Therefore, the contested edible nuts, preserved, spiced or otherwise prepared nuts and seeds; dried and conserved fruits and vegetables; edible oils and fats; jellies, jams, compotes; artichokes [preserved]; fruit puree; pastes made from nuts; pastes made from edible seeds; edible olives are similar to a low degree to the opponent’s commercial retailing and retailing via global computer networks of foodstuffs in Class 35.

Contested goods in Class 30

In a broad interpretation of the category of foodstuffs, it encompasses all of the contested goods in Class 30 (see, to that extent, decision of 01/10/2013, R 2338/2012-2 - Castello (fig.) / Castelló Castelló y Juan S.A. (fig.) et al; 05/05/2015, T‑715/13, Castello (fig.) / Castelló y Juan S.A. (fig.) et al., EU:T:2015:256, § 31).

On account of that and for the same reasons as set out in relation to the comparison of goods in Class 29, the contested oilseed flour for food; essences for food [other than essential oils]; baking spices; confectionery; processed grains, starches, and goods made thereof; baking preparations and yeasts; prepared baking mixes; flavourings, other than essential oils; confectionery from nuts and/or seeds; cereal preparations; spices; spice blends; flours including nut or seed flours; linseeds for human consumption; caraway seeds; sesame seeds are similar to a low degree to the opponent’s commercial retailing and retailing via global computer networks of foodstuffs in Class 35.

Contested goods in Class 31

The contested grains and agricultural, horticultural and forestry products are identical to the opponent’s agricultural, horticultural and forestry products and grains not included in other classes in Class 31, despite the minor differences in the wordings.

Fresh fruits and vegetables; natural plants and flowers; foodstuffs for animals are identically contained in both lists of goods in Class 31.

It has to be clarified that the term ‘such as’, used in the contested seeds such as sunflower seeds, pumpkin seeds or poppy seeds indicates that the specific goods are only examples of items included in the category (seeds) 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).

Therefore, the contested seeds such as sunflower seeds, pumpkin seeds or poppy seeds refer to the same goods as the opponent’s seeds in Class 31. They are identical.

The contested nuts (untreated) and nut kernels; unprocessed millet are included in the broad category of the opponent’s agricultural products not included in other classes in Class 31. Therefore, the goods are identical.

Contested services in Class 35

The contested retail services in relation to tea, seeds, essential oils, oils and fats, nuts, spices, bakery products, grains, flavouring substance, agricultural products and horticultural products, also via the internet are included in, or overlap with, the opponent’s broad category of commercial retailing and retailing via global computer networks of foodstuffs in Class 35, to the extent that the goods featured in the contested retail activities are considered to be foodstuffs. In particular, in relation to essential oils and flavouring substances, it has to be mentioned that these categories include, inter alia, aromatic preparations for improving the taste of food. Therefore, the abovementioned services are identical.

The contested wholesale services in relation to tea, seeds, essential oils, oils and fats, nuts, spices, bakery products, grains, flavouring substance, agricultural products and horticultural products, also via the internet are similar to the opponent’s commercial retailing and retailing via global computer networks of foodstuffs in Class 35, as the goods that these services relate to cannot be clearly separated and are deemed identical. Wholesaling is selling goods to other undertakings (retailers) which then sell the goods to end consumers. Even though the relevant public and distribution channels are different, these services have the same nature and purpose and they are complementary to each other. Moreover, wholesalers sometimes also provide retail services and thus, the commercial origin of these services can be the same.

The contested arranging and concluding commercial transactions for others; arranging contracts for the buying and selling of goods; business management; business administration; office functions; business advice on the organization and management of companies; outsourcing services (business assistance); outsourcing services in the nature of arranging procurement of goods for others can be provided under the control of the same entity that provides import and export agency services. Import and export services relate to the movement of goods and normally require the involvement of customs authorities in both the country of import and the country of export. These services are often subject to import quotas, tariffs and trade agreements. The arranging of import/export of goods is closely related to concluding commercial transactions for others, and involves paperwork, administrative tasks or clerical functions. Therefore, there is a relevant connection between the abovementioned contested services and the opponent’s import and export of foodstuffs in Class 35, because the fact that the opponent’s services are limited to the field of foodstuffs does not alter the previous findings. Moreover, these services move through the same distribution channels and are directed at the same public. Therefore, they are similar.

That, however, does not apply to the contested marketing (listed twice); advertising; providing advice on issues of human resources; public relations; business consultancy and advisory services also relating to franchising. The contested services essentially are assistance, provided to others, in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position in the market and acquiring competitive advantage through publicity; services rendered in the field of personnel management, or business support services, for others, to aid them in launching or running a franchised commercial establishment. The purposes of the contested services are very different from those of the opponent’s goods or services. Such services are not provided by the same undertakings, and they are not offered through the same distribution channels. Furthermore, they are neither complementary, nor in competition.

Therefore, the contested marketing (listed twice); advertising; providing advice on issues of human resources; public relations; business consultancy and advisory services also relating to franchising are dissimilar to all of the opponent’s goods and services in Classes 31, 35 and 39.

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 an average or low degree, are directed at the public at large and at business customers with specific professional knowledge or expertise. It is considered that the relevant public’s degree of attention at the moment of choosing the majority of goods or services is, on the whole, average. Nevertheless, some of the goods and services at issue are specialised, purchased rarely and imply a higher sophistication on the part of the public (for instance business management or administration services). To that extent, the degree of the public’s attention will be higher than average for a part of the goods and services in question.

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 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 public in the Slavic, Finno-Ugric and Baltic language areas, namely the Polish-, Bulgarian-, Czech-, Slovak-, Slovene-, Croatian-, Hungarian-, Finnish-, Estonian-, Lithuanian- and Latvian-speaking parts of the relevant public.

The earlier mark is composed of a device, consisting in a specific arrangement of red and blue arrows, and the letters ‘OCOMO’, depicted in blue, fairly standard typeface. On account of the specific arrangement of the round strokes in the earlier mark’s figurative element, a part of the public may perceive it as a highly stylised representation of the grapheme ‘S’ and, for that part of the public, the earlier mark is composed of a stylised depiction of the word ‘SOCOMO’. However, another part of the public—which is not a negligible one—will not discern any grapheme in the earlier mark’s figurative element. For that part of the public, the earlier mark’s figurative element is a fanciful device.

In principle, if a significant part of the relevant public for the goods or services at issue may be confused as to the origin of those goods or services, this will be sufficient to establish a likelihood of confusion. It is not necessary to establish that all actual or potential consumers of the relevant goods or services are likely to be confused.

In view of that, the comparison of signs will be focused on that part of the public in the relevant language areas that perceives the earlier mark as being composed of a fanciful figurative element and the word ‘OCOMO’. Neither the figurative nor the verbal element in the earlier mark will trigger any specific semantic associations. Being arbitrary, they have an average degree of inherent distinctiveness for the goods and services at issue.

The contested sign is a graphical representation of the word ‘ACOMO’. In particular, whilst the letters are in fairly standard, black typeface, there is a golden, curved stroke above the letter string ‘COMO’ and a somewhat extended space between the letter ‘A’ and the rest of the letters. From the perspective of the public in the relevant language areas, the word ‘ACOMO’ lacks any meaning. It has an average degree of inherent distinctiveness for the goods and services at issue. On the other hand, the golden stroke is a commonplace shape used as an embellishment in commercial designations, and its distinguishing capacity is very low.

None of the signs has any element that can be clearly considered more dominant (visually eye-catching) that others.

Visually, the signs coincide in the sequence of the letters ‘COMO’. However, they differ in that the first letter in the earlier mark’s verbal element is ‘O’, whilst the same position in the contested sign is occupied by the letter ‘A’. In addition, the signs differ in relation to their figurative elements and specific graphical representations, as described above. However, it must be borne in mind that the figurative element in the contested sign is of limited distinctiveness.

As regards the differences resulting from the figurative components in the signs, especially that in the earlier mark, it is recalled that, 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; decisions of 19/12/2011, R 233/2011‑4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011‑5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

In view of the above, and as the coinciding four-letter letter sequence occupies a large proportion in each sign, it is considered that the signs are similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant language areas, the pronunciations of the signs coincide in the sound of the letter sequence ‛COMO’, present identically in both signs. Since the figurative elements will not be enunciated when referring to either of the signs, the only difference results from the fact that the earlier mark begins with the sound of the letter ‘O’, whilst the contested sign begins with the sound of the letter ‘A’. In that regard, it must be pointed out that both phonemes are vowels.

In view of that, and as the coinciding letter sequence forms two syllables out of the three syllables of each sign, it is considered that the signs are highly similar.

Conceptually, the verbal elements of the signs have no meaning for the public in the relevant language areas. The figurative elements do not convey any specific or relevant meaning either. Therefore, a conceptual comparison between the signs is not possible, and the conceptual aspect does not influence the assessment of the similarity of the signs.

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 and services in question from the perspective of the public in the relevant language areas. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

Some of the contested goods and services are identical or similar, to an average or low degree, to the goods and services of the earlier mark. The similarity between the signs results from the shared letter sequence ‘COMO’, and the fact that the words, ‘OCOMO’ and ‘ACOMO’, are quite close in their pronunciation. Admittedly, there are differences between the signs. Nevertheless, the similarity between the signs on a visual level is average and it is considered to be high on an aural level, as explained in detail in section c) of this decision. Neither of the signs conveys any relevant concept that would put some distance between their overall impressions.

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 and services covered are from the same or economically linked undertakings.

In that regard, it has to be pointed out that it is common practice, on the relevant market, for undertakings 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 marks with a new, fashionable image. Moreover, consumers are well accustomed to word marks being stylised and embellished with logotypes and other devices. Therefore, when encountering the conflicting signs, the relevant public, who only rarely has the chance to directly compare two trade marks and must rely on the imperfect recollection that they have kept in their mind, is likely to mentally register the fact that they both contain the letter sequence ‘-COMO’ preceded by a vowel, and perceive the contested sign as a variation of the earlier mark, or vice versa. Consequently, the public may attribute the same (or economically linked) commercial origin to the goods and services that are identical or similar to varying degrees, 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 (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 concluded that, where the public perceives the earlier mark as a stylised representation of the word ‘OCOMO’ accompanied by a fanciful device, the differences identified between the signs are not of such an impact as to remove the overall impressions of the signs sufficiently far as to enable the relevant public, on which the present assessment is focused, to safely distinguish between them.

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).

Taking into consideration the interdependence principle, the similarity between the signs is sufficient, in the present case, to offset the low degree of similarity between some of the goods and services in question.

The Opposition Division finds that there is a likelihood of confusion on the part of the public in the Slavic, Finno-Ugric and Baltic language areas, namely the Polish-, Bulgarian-, Czech-, Slovak-, Slovene-, Croatian-, Hungarian-, Finnish-, Estonian-, Lithuanian- and Latvian-speaking parts of the relevant public.

Therefore, the opposition is partly well-founded on the basis of the opponent’s European Union trade mark registration No 4 452 934. 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 and services found to be identical or similar, to an average or low degree, to those of the earlier trade mark.

The rest of the contested services 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 services cannot be successful.

The opponent has also based its opposition on earlier European Union trade mark No 555 987 for the figurative sign , registered for the following goods and services:

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.

Class 35: Import and export of goods and services.

Class 39: Transport; packaging and storage of goods; travel arrangement; distribution of foodstuffs.

Since this earlier mark covers a narrower scope of goods and services the outcome cannot be different with respect to services for which the opposition has already been rejected. The fact that import and export of goods and services of earlier EUTM 555 987 is defined broader than import and export of foodstuffs of earlier EUTM 4 452 934 does not alter the outcome of the comparison of the goods and services. Therefore, no likelihood of confusion exists with respect to those services.

For the sake of completeness, it is noted that, in connection with the dissimilar services, there is no need 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 and services does not depend on linguistic factors or on the perception of the signs, 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 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

María Belén IBARRA DE DIEGO

Solveiga BIEZA

Julie GOUTARD

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.