OPPOSITION No B 2 588 187

Nowofol Kunststoffprodukte GmbH & Co. KG, Breslauer Str. 15, 83313 Siegsdorf

Germany (opponent), represented by Ernst-Peter Heilein, Robert-Bosch-Str. 22, 85716 Unterschleißheim, Germany (professional representative)

a g a i n s t

Novostrat Limited, Unit 3 Annacotty Business Park, Limerick, Ireland (applicant), represented by Cabinet Laurent & Charras, 3, place de l'Hôtel de Ville, 42005 Saint Etienne Cédex 1, France (professional representative).

On 31/01/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 588 187 is upheld for all the contested goods.

2. European Union trade mark application No 14 246 623 is rejected in its entirety.

3. The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 246 623. The opposition is based on, inter alia, German trade mark registration No 1 052 098, . The opponent invoked Article 8(1)(b) EUTMR in this regard as well as Article 8(4) EUTMR for a company name and for non-registered trade marks.

PRELIMINARY REMARK

On 04/10/2015, the opponent filed a notice of opposition where it clearly stated that the opposition is based on the grounds of Article 8(1)(b) and 8(4) EUTMR.

In its submissions of 20/02/2016, the opponent refers to Article 8(5) EUTMR. However, this ground of the opposition was not claimed by the opponent within the opposition period set by Article 41(1) EUTMR.

Therefore, the new ground of the opposition claimed by the opponent beyond the opposition period will not be taken into account by the Opposition Division.

Therefore, the present opposition will only take into account Article 8(1)(b) and 8(4) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition), if the applicant so requests, the opponent shall furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition shall be rejected.

The applicant requested that the opponent submit proof of use of, inter alia, German trade mark registration No 1 052 098.

The contested application was published on 07/07/2015. The request was submitted in due time and is admissible, as the earlier trade mark was registered more than five years prior to the relevant date. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in Germany from 07/07/2010 to 06/07/2015 inclusive.

Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based, namely the following:

Class 17: Plastic films (semi-manufactures) for the production of technical adhesive tapes, of clear plastic folders and staplers tongues; Plastic films for the isolation of electric cables.

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

On 24/05/2016, according to Rule 22(2) EUTMIR, the Office gave the opponent until 24/07/2016 to submit evidence of use of the earlier trade mark. On 28/06/2016, within the time limit, the opponent submitted evidence of use.

As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data.

The opponent submitted the following relevant evidence:

• Affirmation in lieu of oath issued by the Chief Executive Officer of the opponent’s company on 27/06/2016. This employee declares that the earlier mark has been used in an advertisement (Item 02) and at numerous trade fairs (Items 04-09). It has also been used on labels between 09/03/2003 and 18/01/2016 and on template labels used between 2009 and the present. A table shows sales figures for plastic films (semi-manufactures) sold under the earlier mark. The opponent explains that semi-manufactured plastic films are marketed under the earlier trade mark, but, depending on the specific application of the product, an additional featured sub-brand is used. It also includes tables with sales figures relating to these sub-brands and brochures which show the earlier mark together with these sub-brands for specific goods. In this regard, the opponent also refers to Item 12, in which the earlier mark and the sub-brand appear together in a trade fair advertisement. These sub-brands have the same beginnings as the earlier mark and different endings. Consequently, their structure is the same. Finally, the opponent refers to invoices submitted in order to prove use in Germany and other territories (Item 18).

• Item 02: an advertising layout dated 05/02/2013, in German, relating to a client’s 20th anniversary. The earlier mark appears twice, along with the registered mark symbol.

• Item 04: a brochure for a relevant French trade fair held on 10‑12/03/2015, in which the opponent participated as a German manufacturer and presented a product under one of the sub-brands.

• Items 05-09: photographs of various stands at trade fairs. The earlier mark is shown clearly in a larger size than the rest of the sub-brands. Specific goods are listed below the earlier mark. There is text in English and German.

• Item 10: an undated company brochure in which the earlier mark appears, very large, on the front page, with the registered trade mark symbol next to it and images of one of the specified goods for which it has to prove use below it. The brochure is in German and English. The number of employees, the address of the head office in Germany, the extrusion capacity and a wide range of different types of films are specified on page 14. An account of the goods and their applications on pages 17 and 18 refers to plastic films (semi-manufactures) for the production of technical adhesive tapes. On page 19 there is a photograph of a truck on which the earlier mark is affixed. On the same page, a label bearing the earlier mark also appears.

• Item 11: metric and imperial versions of labels in English bearing the earlier mark.

• Item 12: an advertisement relating to the opponent’s participation in a specialist fair in a large German city within the relevant period. The earlier mark appears in relation to general categories of plastic films and also in relation to one of the opponent’s sub-brands.

• Item 13: an undated brochure in relation to a specific certified release film. The earlier mark appears together with another sub-brand. There is a picture of the opponent’s factory, with machines producing semi-manufactured plastic films.

• Item 14: an undated brochure in relation to a specific film. There are several pictures and one of them shows the name of a famous French building and the year 2010. The earlier mark appears in relation to a sub-brand.

• Item 15: an undated brochure for a specific film for the manufacture of electric devices, in particular for film-assisted moulding. Although related, the promoted product does not have the purpose of isolating electric cables. Therefore, it does not prove use for the relevant goods. The earlier mark appears in relation to a sub-brand.

• Item 16: layout of a brochure in English and German with a variety of images and photographs of employees, factories, machines and goods. According to the opponent, the brochure was released for printing on 25/02/2010 and continued to be distributed after 11/06/2010. Although there is a reference to plastic films for the cable industry and an image of a cable, this relates to a general category of plastic films for the cable industry and could have any purpose.

• Item 17: Layout of a page from a brochure which includes the earlier mark and several sub-brands with images of different kinds of plastic films.

• Item 18: several invoices issued within the relevant period by the opponent in German and English. Some relate to sales in Germany and others relate to sales in Italy, Switzerland, Austria, the United States of America, France and the Netherlands. The earlier mark is present at the top of all of the invoices in a large size. The items sold bear the name of the opponent’s sub-brands.

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, and 12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68).

The opponent’s address in Germany, which appears in almost all the documents, the invoices issued to clients in Germany, the fact that some of the documents are partly or entirely in German (Items 02, 10 and 16) and the manner in which the opponent presented itself as a German manufacturer at a relevant French trade fair (Item 04) are more than sufficient indications to prove use of the earlier mark in Germany. Furthermore, the advertisement relating to the opponent’s participation in a relevant French trade fair (Item 04), the fact that some of the documents are also in English and the invoices issued to French clients demonstrate additional use to that made in Germany in the sense of manufacture in Germany for export to France, in accordance with Article 15(1), second subparagraph, point (b) EUTMR (14/07/2010, R 602/2009-2, Red baron). Consequently, and in accordance with Article 15 EUTMR, the evidence of use filed by the opponent contains sufficient indications concerning the place of use.

In terms of the nature of use of the earlier mark, the evidence demonstrates that it has been used as a main or umbrella brand for all the varieties of plastic film that the opponent manufactures, together with sub-brands for each specific product. For example, in the advertisement relating to a client’s anniversary (Item 02), since the opponent’s products are mentioned in a general manner, only the earlier mark appears. In the submitted brochures, the earlier mark appears on the front page, together with a different and narrower category of plastic films for a specific purpose in each brochure (Items 10, 13, 14, 15 and 16). Inside the brochures, the sub-brands appear in relation to more specific plastic films within the category mentioned on the front page. Items 04, 05-09 and 12 are also clear examples of use of the earlier mark as a main brand in conjunction with different sub-brands. The invoices (Item 18) also support these findings. According to case-law, several signs may be used simultaneously without altering the distinctive character of the registered sign (08/12/2005, T‑29/04, Cristal Castellblanch, EU:T:2005:438, § 34).

The fact that a word element is used as the company’s trade name does not preclude its use as a mark to designate goods or services (30/11/2009, T‑353/07, Coloris, EU:T:2009:475, § 38). In the present case, the opponent has made use of its earlier mark in brochures, on stands at numerous trade fairs, on invoices, on labels, etc., in a manner in which the earlier mark designates a commercial origin in relation to a wide range of plastic films (11/09/2007, C‑17/06, Céline, EU:C:2007:497, § 21-23) and not just to designate a business that is being run.

With regard to the additions to the earlier mark as registered in some of the evidence, namely , the additional symbol of the registered trade mark and the additional text below the verbal element ‘NOWOFOL’ are non-dominant and do not alter the distinctive character of the earlier mark (30/11/2009, T‑353/07, Coloris, EU:T:2009:475, § 29-33 et seq.; 10/06/2010, T‑482/08, Atlas Transport, EU:T:2010:229, § 36 et seq.). Therefore, Article 15(1)(a) EUTMR has been complied with.

A sufficient part of the evidence is dated within the relevant period and it demonstrates use of the earlier mark during this period. In particular, the use of the earlier mark is demonstrated by invoices for the years 2012, 2013 and 2014 (Item 18), a brochure for a relevant trade fair held in France on 10-12/03/2015 (Item 04) and a brochure with a photograph referring to the year 2010 (Item 14). Therefore, the requirement relating to the time of use has also been met.

The documents filed provide the Opposition Division with sufficient information concerning the extent of use. The participation in several relevant fairs (Items 04 and 12), the brochures (Items 10, 13, 14, 15 and 16) and the invoices (Item 18) demonstrate use of the earlier mark for a wide range of semi-manufactured plastic films during the relevant five-year period; they prove public and outward use of the mark. The numerous photographs of stands showing the earlier mark provide further indications in this regard (Items 05-09). In conclusion, the opponent has seriously tried to acquire a commercial position in the relevant market in Germany and in France.

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

The earlier mark is registered for plastic films (semi-manufactures) for the production of technical adhesive tapes, of clear plastic folders and staplers tongues; plastic films for the isolation of electric cables in Class 17.

The evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark. Among the registered goods, the evidence mainly relates to plastic films (semi-manufactures) for the production of technical adhesive tapes (front page and pages 17 and 18 of Item 10 and Item 18). Even taking into account all the documents in conjunction (the affidavit and Items 01‑18), there is only one vague mention and one image of a cable, in Item 16, that could be related to plastic films for the isolation of electric cables, and there are no references whatsoever to the rest of the registered goods (plastic films (semi-manufactures) for the production of clear plastic folders and staplers tongues). Since the Opposition Division cannot base its decision regarding the existence of use on suppositions, it is considered that the evidence shows genuine use of the trade mark for the following goods:

Class 17: Plastic films (semi-manufactures) for the production of technical adhesive tapes.

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

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 German trade mark registration No 1 052 098, for which use was proven and which has a similar structure to the contested sign.

1. The goods

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

Class 17: Plastic films (semi-manufactures) for the production of technical adhesive tapes.

The contested goods are the following:

Class 16: Packaging materials, all of plastic.

Class 17: Plastic foam for packaging; Materials for insulating and packing purposes.

Class 19: Building materials (non-metallic).

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

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

Contested goods in Class 16

The opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes in Class 17 are continuous polymeric materials for a specific purpose. However, plastic films with different characteristics can be easily manufactured with the same machines, thus satisfying customer’s different and specific requirements (width, thickness, colour, transparency, flexibility, resistance, anti-adhesiveness, etc.). Therefore, plastic films (semi-manufactures) with a large variety of applications, such as packaging, labels, building materials, isolation, coverage and protection of electric devices and cables, etc., have the same nature and, usual origin, and they can have the same distribution channels and sales outlets.

Therefore, the contested packaging materials, all of plastic and the opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes are similar to an average degree, since they have the same nature, usual origin, distribution channels and relevant public.

Contested goods in Class 17

For the reasons explained above, the contested plastic foam for packaging and the opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes can have the same usual origin, distribution channels and relevant public. Therefore, they are similar to a low degree.

The contested materials for insulating and packing purposes and the opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes overlap with plastic films (semi-manufactures) for the production of technical adhesive tapes for insulating and packaging purposes. Therefore, they are identical.

Contested goods in Class 19

As stated above, the opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes in Class 17 can have, inter alia, an insulating purpose and, consequently, can have applications in the building industry.

Therefore, the contested building materials (non-metallic) and the opponent’s plastic films (semi-manufactures) for the production of technical adhesive tapes in Class 17 are similar to a high degree, as they can have the same nature, purpose, usual origin, distribution channels and relevant public.

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 found to be identical or similar to varying degrees are directed at the public at large and at business customers with specific professional knowledge or expertise. The degree of attention is, on the whole, average.

3. The signs

	NOVOSTRAT
Earlier trade mark	Contested sign

The relevant territory is Germany.

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 sign composed of the verbal elements ‘NOWO*’, depicted in grey, and ‘*FOL’, depicted in black. Both elements are in a bold upper case standard typeface. Consumers will perceive two elements, ‘NOWO’ and ‘FOL’, due to their different colours. Although ‘NOWO’ might be considered a fanciful spelling of ‘novo’, that is, the masculine declension of the Latin adjective ‘novus’ meaning ‘new’, the equivalent German word is ‘neue’. ‘NOWO’ is not close to the equivalent German word, and the relevant public is not familiar with Latin in connection with plastic films (semi-manufactures) for the production of technical adhesive tapes. Therefore, ‘NOWO’ will not be associated with any meaning by the relevant public and it has an average degree of distinctiveness in relation to the relevant goods.

The element ‘FOL’ might be an abbreviation of the German word ‘Folie’ meaning film. Although it could be considered allusive, first, this abbreviation is placed at the end of the earlier mark and will catch consumers’ attention less than the first part ‘NOWO’, and, second, it is not a common abbreviation in relation to the relevant goods. Therefore, several mental steps are required for the association to be made, and it is considered that it has no meaning for the relevant public. It has an average degree of distinctiveness in relation to the goods in question. The earlier mark does not have any elements that are more dominant (visually eye-catching) than other elements.

The contested sign is a word mark and, consequently, it cannot have dominant elements, as only the word as such is protected. It has no meaning on the whole and it has no independent elements, since there are no clear meanings or visual features that would make consumers dissect the word mark. Consequently, the contested sign has no elements that could be considered more distinctive than others.

Visually, the signs coincide in the sequence of letters ‘NO*O’. This sequence is present at the beginnings of the conflicting signs. Consumers generally tend to focus on the first part 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 one that first catches the attention of the reader.

The signs’ third letters are different, namely ‘W’ in the earlier mark and ‘V’ in the contested sign. However, visually, the letter ‘W’ looks like a duplication of the letter ‘V’ and does not result in as eye-catching a difference as another letter would.

The signs also differ in their endings, namely ‘-FOL’ in the earlier mark and ‘-STRAT’ in the contested sign. However, the length of the signs may influence the effect of the differences between them. The shorter a sign, the more easily the public is able to perceive all of its single elements. Therefore, in short words small differences may frequently lead to a different overall impression. In contrast, the public is less aware of differences between longer signs, such as the signs in the present case.

Since the signs on the whole have similar beginnings and they are long signs, it is considered that they are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‛NOWO-’ of the earlier mark and ‘NOVO-’ of the contested sign, since the signs’ third letters will be pronounced in an identical manner. The pronunciation differs in the sound of the letters ‘-FOL’ of the earlier mark and ‛-STRAT’ of the contested sign. The conflicting first two syllables are identical. The signs differ in one additional syllable placed at their ends. Therefore, the signs are aurally highly similar.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 claimed that the earlier trade mark enjoys enhanced distinctiveness but did not file any evidence in order to prove such a claim within the time limit given by the Office pursuant to Rule 19 EUTMIR, which expired on 20/02/2016. Although the opponent submitted evidence on 28/06/2016, according to Rule 19(4) EUTMIR, the Office shall not take into account written submissions or documents, or parts thereof, that have not been submitted within the time limit set by the Office.

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

According to the case-law of the Court of Justice, in determining the existence of likelihood of confusion, trade marks have to be compared by making an overall assessment of the visual, aural and conceptual similarities between the marks. The comparison ‘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, § 22 et seq.). Likelihood of confusion must be assessed globally, taking into account all the circumstances of the case.

In the present case, the goods are partly identical and partly similar to varying degrees.

The conflicting signs are aurally highly similar and visually similar to an average degree, as they are long signs with highly similar beginnings ‘NOWO’ and ‘NOVO’ and the main difference being placed at the end. Furthermore, the signs do not convey meanings that could counteract the similarities.

Although, the average consumers of the category of products concerned are deemed to be reasonably well informed and reasonably observant and circumspect, account must be 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. It should also be borne in mind that average consumers’ degree of attention is likely to vary according to the category of goods or services in question (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26). Even consumers with a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T‑443/12, ancotel, EU:T:2013:605, § 54).

In addition, the Opposition Division notes that likelihood of confusion includes the likelihood of association, in the sense that the public may, if not confuse the two signs directly, believe that they come from the same undertaking or from economically related ones (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 16).

In the present case, the consumer may easily conclude that the goods labelled and offered under the contested sign come from the same undertaking that offers goods under the earlier mark or that the two undertakings are economically linked; for example, they may conclude that the contested sign designates a special line of the opponent’s goods.

Consequently, the differences between the signs are not sufficient to offset the similar overall impressions created by those signs.

In its observations, the applicant argues that the opponent cannot claim an exclusive right to the sequence of letters ‘NOVO’, since there are many trade marks that include ‘NOVO’ in the European Union, Austria, the Benelux countries, France, Germany and Italy. In support of its argument, the applicant submits the results of database searches.

The Opposition Division notes that a proprietor of any of the specified types of earlier trade marks in Article 8 EUTMR is entitled to file an opposition against an EUTM application and that the existence of trade mark registrations with a coinciding element is neither a legal nor a judicial impediment.

In addition, ‘NOWO’ and ‘NOVO’ have no meaning and therefore have an average degree of distinctiveness for part of the public in relation to the relevant goods. On the basis of data concerning a register only, it cannot be assumed that all such trade marks have been effectively used and, in consequence, consumers have become accustomed to trade marks that include ‘NOVO’. Under these circumstances, the applicant’s claims must be set aside.

The applicant also refers to the Office’s previous decision of 01/07/2015, B 2 396 862, ‘ARTRINOVO’ vs. ‘ICONOVO’, to support its arguments. However, the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T‑281/02, Mehr für Ihr Geld, EU:T:2004:198).

In the present case, the previous case referred to by the applicant is not relevant to the present proceedings, since the relevant territory in the case cited is Spain. Furthermore, the structure of the conflicting signs is different, since the coinciding identical element ‘NOVO’ is at the ends of the conflicting signs, which have different beginnings.

In view of the above, it follows that, even if the previous decision submitted to the Opposition Division is to some extent factually similar to the present case, the outcome may not be the same.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well‑founded on the basis of the opponent’s German trade mark registration No 1 052 098. It follows that the contested trade mark must be rejected for all the contested goods.

In relation to the goods that are similar to a low degree, according to case-law, 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 high degree of similarity between the signs’ structures and beginnings outweighs the low degree of similarity between some of the goods, and, therefore, there is a likelihood of confusion in relation to them.

As earlier German trade mark registration No 1 052 098 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier rights invoked by the opponent (16/09/2004, T‑342/02, Moser Grupo Media, S.L., EU:T:2004:268).

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 ground of the opposition, namely Article 8(4) EUTMR.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Volker Timo MENSING

Alexandra APOSTOLAKIS

Gueorgui IVANOV

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.