OPPOSITION No B 2 672 643

Meroil, S.A., Port de Lagos 20 Delta 1, Pto de Barcelona, 08039 Barcelona, Spain (opponent), represented by Pons Consultores de Propiedad Industrial, S.A., Glorieta Rubén Darío 4, 28010 Madrid, Spain (professional representative)

a g a i n s t

German Mirror Lubricants & Greases Company FZE., 1E-02 Hamriyah Free Zone, Sharjah, United Arab Emirates (applicant), represented by Liesegang & Partner mbB Rechtsanwälte, Kettenhofweg 1, 60325 Frankfurt am Main, Germany (professional representative).

On 05/01/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 672 643 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 14 889 811 for the figurative mark . The opposition is based on, inter alia, European Union trade mark registration No 5 124 037 for the figurative mark , in relation to which the opponent invoked Article 8(1)(b) EUTMR. In relation to another earlier right, the opponent also invoked Article 8(4) 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.

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 5 124 037 for the figurative mark , since this has the broadest scope of protection as regards the goods and services that are covered, and the other signs are not more similar to the contested sign than this one.

a) The goods and services

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

Class 4: Fuels (including motor spirit) and illuminants, industrial oils and greases, lubricants; candles and wicks for lighting.

Class 35: Commercial retailing of fuels (including motor spirit) and illuminants, industrial oils and greases, lubricants; candles and wicks for lighting; promotion services provided through a customer loyalty card; advertising; business management, business administration; office function services.

Class 37: Vehicle service stations; car valet services; vehicle lubrication services: car and vehicle washing; vehicle polishing; tyre repair services; construction services; repair services; installation services; asphalting; installation and repair of containers, installation and preservation of oil pipelines; road surfacing services; well-boring services; vehicle breakdown assistance.

Class 39: Transport services; packaging, storage of goods; distribution of energy services; warehousing of goods, rental of garages; transport by pipeline.

The contested goods and services are the following:

Class 1: Chemical substances, chemical materials and chemical preparations, and natural elements; hydraulic oils for brake circuits; detergent additive for use with motor oil.

Class 4: Petroleum, raw or refined; lubricating oil; lubricants and industrial greases, waxes and fluids; lubricating grease; oils for automobiles; motor oil; non-chemical additives for engine oils; lubricants; synthetic compressor oils; lubricants being gear oils; industrial oils and greases, lubricants.

Class 35: Wholesale services in relation to lubricants; import-export agencies.

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 1

The contested hydraulic oils for brake circuits are similar to the opponent’s industrial oils and greases in Class 4. These goods may have the same purpose, coincide in distribution channels, target the same relevant public and have the same origin.

The contested detergent additive for use with motor oil is similar to a low degree to the opponent’s lubricants; fuels (including motor spirit) in Class 4. These goods may coincide in distribution channels and relevant public and may have the same origin.

The contested chemical substances, chemical materials and chemical preparations, and natural elements are dissimilar to the opponent’s goods and services. The contested goods form a very broad category of all kinds of chemical substances; that is to say, raw materials or semi-processed goods. These goods have a different nature, purpose and method of use from the opponent’s goods and services. They are neither complementary nor in competition. Furthermore, they do not originate from the same undertakings, are offered through different distribution channels and target a different relevant public. The mere fact that one product is used for the manufacture of another will not be sufficient in itself to show that the goods are similar, as their nature, purpose, relevant public and distribution channels may be quite distinct (13/04/2011, T‑98/09, T Tumesa Tubos del Mediterráneo S.A., EU:T:2011:167, § 49-51). According to case-law, raw materials (the aforementioned contested goods), subjected to a transformation process, are essentially different from the finished products (the opponent’s goods in Class 4) that incorporate, or are covered by, those raw materials, in terms of nature, aim and intended purpose (03/05/2012, T‑270/10, Karra, EU:T:2012:212, § 53). Furthermore, they are not complementary, since one is manufactured with the other, and raw material is in general intended for use in industry rather than for direct purchase by the final consumer (09/04/2014, T‑288/12, Zytel, EU:T:2014:196, § 39-43). When comparing these goods with the opponent’s remaining goods and services, they also differ in nature, purpose and method of use. They are neither complementary nor in competition. They have different distribution channels, target a different public and usually originate from different companies.

Contested goods in Class 4

Lubricants (mentioned three times) and industrial greases and industrial oils and greases are identically contained in both lists of goods.

The contested petroleum, raw or refined and industrial waxes and fluids are included in the broad category of the opponent’s fuels (including motor spirit) and illuminants in Class 4. Therefore, they are identical.

The contested lubricating oil; lubricating grease; lubricants being gear oils are included in the broad category of, or overlap with, the opponent’s lubricants in Class 4. Therefore, they are identical.

The contested oils for automobiles; motor oil; synthetic compressor oils are included in the broad category of the opponent’s industrial oils and greases in Class 4. Therefore, they are identical.

The contested non-chemical additives for engine oils are similar to a low degree to the opponent’s lubricants in Class 4. These goods may coincide in distribution channels and relevant public and may have the same origin.

Contested services in Class 35

Retail services concerning the sale of specific goods are similar to an average degree to these specific goods. Although the nature, purpose and method of use of these goods and services are not the same, they are similar because 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 same principle applies to services rendered in connection with other types of services that consist exclusively of activities revolving around the actual sale of goods, such as wholesale services. Therefore, the contested wholesale services in relation to lubricants are similar to the opponent’s lubricants in Class 4.

The contested import-export agencies services relate to the movement of goods and normally require the involvement of customs authorities in both the importing and exporting countries. These services are often subject to import quotas, tariffs and trade agreements and are considered to relate to business administration. These services do not relate to the actual retail of the goods; they would be preparatory or ancillary to the commercialisation of such goods. The fact that the subject matter of import-export services and some of the opponent’s goods may be the same is not a relevant factor for finding a similarity. The goods and services under comparison differ significantly. They have different natures and purposes. They target a different public via different distribution channels. They are neither in competition, nor are they complementary. Therefore, these services are dissimilar to all of the opponent’s goods and services.

b) 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 various degrees are directed at the public at large (e.g. lubricating oil; waxes and fluids; lubricating grease; oils for automobiles) and at business customers with specific professional knowledge or expertise (e.g. wholesale services in relation to lubricants).

The degree of attention varies from average (e.g. fuels and illuminants) to above average (e.g. the goods and services in Classes 1 and 35).

c) The signs

Earlier trade marks	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 ‘Meroil’, written in a fairly standard white title-case typeface. On the left side is a figurative element in yellow in the form of a zig-zag line, as depicted above; all these elements are placed inside a rectangular blue frame. The contested sign is a figurative mark composed of two separated verbal elements, ‘Mirr Oils’, written in a fairly standard blue (Mirr) or red (Oils) title-case typeface. On the left side is a figurative element in blue and red, as depicted above.

Regarding the earlier mark, the Court has held that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a (word) sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words they know (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). In light of the above judgment, the Opposition Division considers that the whole public will dissect the earlier mark into the elements ‘Mer’ and ‘oil’.

Taking this into account, the verbal element ‘oil’ in the earlier mark, and its plural form ‘Oils’ in the contested sign, will be perceived by the whole public as referring to

… any of a number of viscous liquids with a smooth sticky feel. They are usually flammable, insoluble in water, soluble in organic solvents, and are obtained from plants and animals, from mineral deposits, and by synthesis. They are used as lubricants, fuels, perfumes, foodstuffs, and raw materials for chemicals; another name for petroleum; any of a number of substances usually derived from petroleum and used for lubrication; a petroleum product used as a fuel in domestic heating, industrial furnaces, marine engines, etc.’

(information extracted from Collins English Dictionary on 18/11/2020 at https://www.collinsdictionary.com/dictionary/english/oil).

This is because it is not only a basic English word that is commonly used in this particular field, but also because it is very similar to equivalent words in other languages, such as ‘óleo’ (in Portuguese and Spanish), ‘olej’ (in Czech), ‘olie’ (in Danish and Dutch), ‘olio’ (in Italian), ‘öljy’ (in Finnish), ‘Öl’ (in German), ‘olej’ (in Polish) and ‘olja’ (in Swedish). In Spanish the word ‘gasoil’ is also often used to indicate this kind of goods. Since this element refers either to the nature of the goods or to the subject of the services, this element is non-distinctive for the relevant goods and services. The same is applicable to the word ‘Oils’ of the contested sign, which appears in plural form.

The element ‘Mer’ of the earlier mark will be understood, for example, by the French-speaking part of the public as referring to the sea. The remaining part of the public will perceive it as a meaningless term. Whether or not it has a meaning, it bears no relation to the relevant goods and services and has a normal degree of distinctiveness. The verbal element ‘Mirr’ of the contested sign is meaningless and, therefore, has a normal degree of distinctiveness for the relevant goods and services.

The figurative elements of the earlier mark and the contested sign, as depicted above, have no particular relation to the goods and services and are distinctive.

Furthermore, the blue frame of the earlier mark is of a merely decorative nature, and the public will not pay as much attention to this element. Therefore, it has less impact on the overall comparison.

In addition, the earlier mark and the contested sign have no element that is more dominant (visually eye-catching) than others.

In summary, the distinctive verbal elements of the marks are ‘Mer’ of the earlier mark and ‘Mirr’ of the contested sign, together with their distinctive figurative elements.

Furthermore, 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. The distinctive verbal elements of the marks, namely ‘Mer’ v ‘Mirr’, are rather short, being composed of three and four letters respectively.

Visually, the signs coincide in the string of letters ‘M*r(r) oil*’. They differ in the second letter ‘e’ of the earlier mark and some letters of the contested sign, namely the second letter ‘i’, the double letter ‘r’, and the last letter ‘s’. They also differ in the colours and typefaces, which are in any case fairly standard. The marks differ entirely in their figurative elements, as explained and depicted above, and in the fact that the verbal element of the earlier mark is formed by a single word, while the contested sign is composed of two separate words.

For all the aforementioned reasons, and taking into account their distinctiveness, the signs are visually similar to a very low 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 letters ‘M*r(r) oil*’, present identically in both signs. The double letter ‘r’ of the contested sign will be pronounced identically to one single letter ‘r’ by at least a substantial part of the public. Consequently, the marks differ mainly in their vowels, ‘e’ in the earlier mark versus ‘i’ in the contested sign, and in the contested sign’s last letter ‘s’.

For all the aforementioned reasons, and taking into account their distinctiveness, the signs are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. The relevant public will associate the verbal elements ‘oil’ and ‘Oils’ (in singular and plural form, respectively), included in both marks, with the meaning explained above, which is non-distinctive and will have a very limited impact on the conceptual comparison, if any. Furthermore, the French-speaking public will perceive the element ‘Mer’ as referring to the sea, while the remaining part of the public will perceive both the elements ‘Mer’ and ‘Mirr’ as meaningless terms, as mentioned earlier in this decision. The figurative elements of the marks do not refer to any concept in particular. Consequently, the marks are conceptually similar to a very low degree, while for the French-speaking public, they are not conceptually similar.

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

d) 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 territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a non‑distinctive element in the mark (the word ‘oil’) and an element serving a merely decorative purpose (the blue frame), as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

A likelihood of confusion (including a likelihood of association) 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.

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

The goods at issue have been found to be partly identical or similar (to varying degrees) and partly dissimilar. They are directed at the public at large and at a more professional public, whose degree of attention varies from average to above average.

The marks have been found visually and conceptually similar to a very low degree and aurally similar to an average degree.

Although the signs coincide in some letters, sounds and concepts, these main coincidences are placed at the ends of the marks, to which the consumer usually pays less attention, and are limited to non-distinctive elements. In comparing the marks overall, the Opposition Division finds that there are sufficient differences provided by the letters, mainly in the beginning elements of the signs, which are distinctive, as well as in their structure and figurative elements. Furthermore, as pointed out above, even though figurative elements normally have a lesser impact on the consumer, these devices are entirely different in both marks. The contested sign’s figurative element is particularly fanciful compared to that of the earlier mark. Moreover, the distinctive verbal elements ‘Mer’ and ‘Mirr’ only coincide visually in two letters and have noticeably different sounds in their vowels, ‘e’ v ‘i’.

The visual differences outweigh the aural similarity, especially taking into account the above-average degree of attention for some of the goods and services, namely those in Classes 1 and 35, and the absence of any evidence to prove enhanced distinctiveness.

As regards the goods in Class 4, some of which, for example fuels and illuminants, have an average degree of attention, these goods are often bought visually, displayed in petrol stations or on shelves in petrol stations, DIY shops, etc.; consumers are guided by the visual impact of the mark they are looking for when purchasing them. Therefore, their visual impact is more important than the aural. The opponent did not prove any enhanced distinctiveness for these goods either.

The Opposition Division is of the opinion that the differences are sufficient to safely exclude a likelihood of confusion, including a likelihood of association, even taking into account the identity of some of the goods. It can reasonably be concluded that consumers will be able to clearly distinguish between the marks in dispute and will perceive them as coming from different undertakings.

Considering all the above, even taking into account that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

The opponent has also based its opposition on the following earlier trade marks:

 Spanish trade mark registration No 1 814 384 for the figurative mark for distribution and storage services of oil products and derivatives in Class 39.

 Spanish trade mark registration No 2 518 636 for the figurative mark for services of service stations (petrol stations) in Class 37.

These other earlier rights invoked by the opponent are no more similar to the contested mark than the one which has been examined. The marks are merely a black and white representation of the earlier mark examined above, without the blue rectangular frame. As pointed out above, this frame serves a merely decorative purpose and has less impact on the overall comparison. Consequently, even though these earlier marks have no frame, this difference is not sufficient to find the marks more similar in an overall impression. For the same reasons, these earlier marks are also different, in an overall comparison, from the contested sign. Therefore, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods and services. As regards the services of Spanish trade mark registration No 2 518 636 these are also dissimilar to the goods and services found to be dissimilar in the earlier comparison.

Given that the opposition is not well founded under Article 8(1) EUTMR, it is unnecessary to examine the evidence of use filed by the opponent in relation to the aforementioned earlier trade marks.

As the opposition is not successful on the basis of Article 8(1)(b) EUTMR, the Opposition Division will now proceed to examine the case on the basis of Article 8(4) EUTMR.

NON‑REGISTERED MARK OR ANOTHER SIGN USED IN THE COURSE OF TRADE (ARTICLE 8(4) EUTMR)

The opponent invoked Article 8(4) EUTMR in relation to the following earlier sign used in the course of trade:

- Spanish trade name ‘MEROIL, S.A.’ used for purchase, creation and rental and operation of all type of establishments related to this activity, purchase, exchange or barter, renting with or without option to buy in Class 36; construction and refurbishment of properties for the exploitation of indicated business in Class 37 and trade and storage of oil and oil products in Class 39.

According to Article 8(4) EUTMR, upon opposition by the proprietor of a non‑registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for will not be registered where and to the extent that, pursuant to the Union legislation or the law of the Member State governing that sign:

(a) rights to that sign were acquired prior to the date of application for registration of the European Union trade mark, or the date of the priority claimed for the application for registration of the European Union trade mark;

(b) that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.

Therefore, the grounds of refusal of Article 8(4) EUTMR are subject to the following requirements:

 the earlier sign must have been used in the course of trade of more than local significance prior to the filing of the contested trade mark;

 pursuant to the law governing it, prior to the filing of the contested trade mark, the opponent acquired rights to the sign on which the opposition is based, including the right to prohibit the use of a subsequent trade mark;

 the conditions under which the use of a subsequent trade mark may be prohibited are fulfilled in respect of the contested trade mark.

These conditions are cumulative. Therefore, where a sign does not satisfy one of those conditions, the opposition based on a non‑registered trade mark or other signs used in the course of trade within the meaning of Article 8(4) EUTMR cannot succeed.

a) The right under the applicable law

According to Article 95(1) EUTMR, the Office will examine the facts of its own motion in proceedings before it; however, in proceedings relating to relative grounds for refusal of registration, the Office will restrict this examination to the facts, evidence and arguments submitted by the parties and the relief sought.

According to Rule 19(2)(d) EUTMIR (in the version in force at the time when the adversarial part of the proceedings started), if the opposition is based on an earlier right within the meaning of Article 8(4) EUTMR, the opposing party must provide evidence of its acquisition, continued existence and scope of protection.

Therefore, the onus is on the opponent to submit all the information necessary for the decision, including identifying the applicable law and providing all the necessary information for its sound application. According to case-law, it is up to the opponent ‘… to provide OHIM not only with particulars showing that he satisfies the necessary conditions, in accordance with the national law of which he is seeking application … but also particulars establishing the content of that law’ (05/07/2011, C‑263/09 P, Elio Fiorucci, EU:C:2011:452, § 50). The evidence to be submitted must allow the Opposition Division to determine safely that a particular right is provided for under the law in question, as well as the conditions for acquisition of that right. The evidence must further clarify whether the holder of the right is entitled to prohibit the use of a subsequent trade mark, as well as the conditions under which the right may prevail and be enforced vis-à-vis a subsequent trade mark.

As regards the provisions of the applicable law, the opponent must provide a clear identification of the content of the national law relied upon by adducing publications of the relevant provisions or jurisprudence (Article 7(2)(d) EUTMDR). The opponent must provide the reference to the relevant legal provision (Article number and the number and title of the law) and the content (text) of the legal provision by adducing publications of the relevant provisions or jurisprudence (e.g. excerpts from an official journal, a legal commentary, legal encyclopaedias or court decisions). If the relevant provision refers to a further provision of law, this must also be provided to enable the applicant and the Office to understand the full meaning of the provision invoked and to determine the possible relevance of this further provision. Where the evidence concerning the content of the relevant national law is accessible online from a source recognised by the Office, the opponent may provide such evidence by making a reference to that source (Article 7(3) EUTMDR).

According to Article 7(4) EUTMDR, any provisions of the applicable national law governing the acquisition of rights and their scope of protection as referred to in Article 7(2)(d) EUTMDR, including evidence accessible online as referred to in Article 7(3) EUTMDR must be in the language of the proceedings or accompanied by a translation into that language. The translation must be submitted by the opposing party of its own motion within the time limit specified for submitting the original document.

The opponent, in its further facts, evidence and arguments and further observations of 18/05/2016 and 22/09/2016, respectively, referred to Article 7(1)(a) and (b) and Article 7(2)(a) and (b) according to Spanish trademark law 17/2001, quoting the following (a translation of the Spanish text, which was also submitted).

Article 7. Earlier trade names.

1. A trade mark shall not be registered if:

a) it is identical with an earlier trade name which designates identical activities for which the trade mark is applied for.

b) it is identical or similar to an earlier trade name and it designates identical or similar activities to the products or services for which the trade mark is applied for and there is a risk of confusion among the public; the likelihood of confusion includes the likelihood of association with the earlier business name.

2. For the purposes of this article, it is considered a prior trade name:

a) Trade names registered in Spain with an earlier filing date or priority to the application under consideration.

b) Trade names applications referred to in the previous point, provided that they will be finally registered.

Article 87. Concept and regulations.

3. Except opposed regulation provided in this chapter, shall apply to trade names, insofar as they are not inconsistent with its nature, the provisions of this Act relating to trademarks.

Article 90. Rights conferred by registration.

The trade name registration gives its owner the exclusive right to use in trade under the terms provided in this Act.

However, the opponent did not, for example, submit a separate copy of the law (as an excerpt from an official journal, a legal commentary or a court decision), or highlight the relevant text or adduce publications of the relevant provisions or jurisprudence. It merely provided the article numbers and the text of the law as an integral part of its observations. As such, the opponent has not proven the content of the applicable law in a sufficient manner. As the opponent is required to prove the content of the applicable law, it must provide the applicable law in the original language. If that language is not the language of the proceedings, the opponent must also provide a complete translation of the legal provisions invoked in accordance with the standard rules of substantiation.

Furthermore, the opponent must submit appropriate evidence of fulfilment of the conditions of acquisition and of the scope of protection of the right invoked, as well as evidence that the conditions of protection vis-à-vis the contested mark have actually been met. In particular, it must put forward a cogent line of argument as to why use of the contested mark would be successfully prevented under the applicable law.

In the present case, the opponent did not submit sufficient information on the legal protection granted to the type of trade sign invoked by the opponent, namely the trade name ‘MEROIL, S.A.’. The opponent did not submit sufficient information on the possible content of the right invoked or the conditions to be fulfilled for the opponent to be able to prohibit the use of the contested trade mark under the law in Spain as mentioned by the opponent.

Therefore, the opposition is not well founded under Article 8(4) EUTMR.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

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

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Saida CRABBE

Chantal VAN RIEL

Victoria DAFAUCE MENÉNDEZ

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.