OPPOSITION No B 2 922 071

Edison S.p.A., Foro Buonaparte, 31, 20121 Milano, Italy (opponent), represented by Notarbartolo & Gervasi S.p.A., Corso di Porta Vittoria, 9, 20122 Milano, Italy (professional representative)

a g a i n s t

Cromwell Group (Holdings) Ltd., 65 Chartwell Drive, Wigston, Leicester LE18 2FS, United Kingdom (applicant), represented by Brabners LLP, Horton House, Exchange Flags, Liverpool L2 3YL, United Kingdom (professional representative).

On 21/12/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 922 071 is partially upheld, namely for the following contested goods:

Class 9: Batteries; anemometers; calculators; clamp meters; multimeters; hygrometers; tachometers and counters; infrared thermometers.

2. European Union trade mark application No 16 007 213 is rejected for all the above goods. It may proceed for the remaining goods.

3. Each party bears its own costs.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 16 007 213 (figurative mark ‘ ’), namely against all the goods in Classes 8, 9, 11 and 20. The opposition is based on, inter alia, European Union trade mark registration No 3 315 991 (figurative mark ‘ ’). The opponent invoked Article 8(1)(a) and (b) EUTMR.

LIKELIHOOD OF CONFUSION — ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs, and the relevant public.

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 3 315 991.

a) The goods

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

Class 7: Alternators; Belts for machines, bulldozers; Centrifuges (machines); Coalcutting machines; Concrete mixers [machines]; Condensing installations; Control cables for machines, engines or motors; Materials handling machines; Crushing machines; Cutters [machines]; Derricks; Drainage machines; Drilling machines; Dynamos; Earth moving machines; Electric hammers; Elevator belts; Elevators [lifts]; Motors and engines (except for land vehicles); Earth moving machines; Extractors for mines; Filtering machines; Foundry machines; Fuel conversion apparatus for internal combustion engines; Blowing machines for the compression, exhaustion and transport of gases; Aerators; Generators (current -); Generators of electricity; Grinding machines; High pressure washes; Hydraulic engines and motors; Hydraulic turbines; Igniting magnetos; Machine tools; Metalworking machines; Milling machines; Mine borders; Shaping and moulding machines; Oil refining machines; Ore treating machines; Pneumatic hammers; Wine presses; Propulsion mechanisms other than for land vehicles; Pulleys (parts of machines); Pumps; Robots (machines); Bearings; Separators; Sewage pulverizers; Steam/oil separators; Stone working machines; Transmission chains other than for land vehicles; Pneumatic tube conveyors; Hydraulic turbines; Turbocompressors; Valves (machine parts); Trash compacting machines; Garbage disposal machines.

Class 9: Electric installations for the remote control of industrial operations; Self-regulating fuel pumps; Gauges; Heat regulating apparatus; Hydrometers; Ignition (Electric apparatus for remote -); Water level indicators; Integrated circuits; Electromagnetic coils; Central processing units; Programs for computers; Electro-dynamic apparatus for the remote control of signals; Temperature controlling apparatus; Transmitting sets (telecommunication); Commutators; Conduits (electric); Electric batteries; Galvanometers; Reducers (electricity); Relays, electric; Semiconductors; Transformers (electricity) for industrial installations; Transistors [electronic]; Electrical cables; All being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting.

Class 11: Apparatus for heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes, other than ice chests, refrigerating containers and water cooling apparatus.

The contested goods are the following:

Class 8: Specialty application tools for cable ties, namely cable guns.

Class 9: Batteries; anemometers; calculators; circuit testers; clamp meters; multimeters; hygrometers; stud, pipe and voltage detectors; tachometers and counters; infrared thermometers.

Class 11: Lanterns; work lights and inspection lamps; torches.

Class 20: Cable ties for fastening electrical conductors.

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

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

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.

The goods of the opponent in Class 7 cover machines and equipment in the field of building construction, while the opponent’s goods in Class 9 include electrical devices and installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting. Apparatus for heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes are covered by the opponent’s goods in Class 11.

Contested goods in Class 8

The contested specialty application tools for cable ties, namely cable guns are dissimilar to the opponent’s electrical cables; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting because they have nothing in common. As the contested goods’ are cable guns used to fasten cable ties, they are of a different nature, intended purpose and method of use than the opponent’s goods. Furthermore, the compared goods are not in competition. It is considered that the potential complementarity of the two goods does not outweigh the different natures, purposes or methods of use. In addition, they do not have the same producers.

These contested goods are also considered to be dissimilar to the other goods of the opponent in Classes 7, 9 and 11 because they have nothing in common. They are of a different nature, intended purpose and method of use than the opponent’s goods. Furthermore, they are neither in competition nor complementary. A cable tie gun is small tool whereas the opponent’s goods in Class 7 cover heavy equipment. Furthermore, the contested good has nothing in common with electrical apparatus in Class 9 and temperature-controlling apparatus in Class 11.

Contested goods in Class 9

The contested anemometers; clamp meters; multimeters; hygrometers; tachometers and counters overlap with the opponent’s gauges; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting. Indeed, a gauge is ‘an instrument that measures and gives a visual display of the amount, level, or contents of something’ (information extracted from the English Oxford Dictionary on 06/12/2018 at https://en.oxforddictionaries.com/definition/gauge). Therefore, they are identical.

The contested infrared thermometers overlap with the opponent’s temperature controlling apparatus; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting. Therefore, they are identical.

The contested batteries include as a broader category the opponent’s electric batteries; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested calculators are similar to the opponent’s programs for computer; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting because they coincide in distribution channels, end users and producers. They are also complementary.

The contested circuit testers; stud, pipe and voltage detectors are dissimilar to the opponent’s integrated circuits; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting because they have nothing in common. An integrated circuit is a small semiconductor-based electronic chip consisting of fabricated transistors, resistors and capacitors. As the purpose of the contested goods is to locate something (either an electrical path or a cable), they are of a different intended purpose as well as nature, and method of use than the opponent’s goods in Classes 7, 9 or 11. Furthermore, the compared goods are neither in competition nor complementary.

Contested goods in Class 11

The contested lanterns; work lights and inspection lamps; torches are dissimilar to the opponent’s generators of electricity; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting in Class 7 because they have nothing in common. As the contested goods are devices used to give light, and the opponent’s generator of electricity is a device that converts energy for use in an external circuit, they are of a different nature and method of use. Furthermore, they do not target the same end users and are produced by different companies.

These contested goods are also considered to be dissimilar to the other goods of the opponent in Classes 7, 9 and 11 because they have nothing in common. They are of a different nature, intended purpose and method of use than the opponent’s goods. Furthermore, they are not in competition.

Contested goods in Class 20

The contested cable ties for fastening electrical conductors are dissimilar to the opponent’s electrical cables; all being for installations for generating, distributing and monitoring of energy, and not being for installations for electric lighting in Class 9 because they have nothing in common. As the opponent’s electrical cables consist of an assembly of one or more wires running side by side or bundled, used to carry electric current, together with the fact that a cable tie is a fastener used to bundle said wires, it is considered that the potential complementarity of the two goods does not outweigh the different natures, purposes or methods of use. In addition, they do not have the same producers.

These contested goods are also considered to be dissimilar to the other goods of the opponent in Classes 7, 9 and 11 because they have nothing in common. They are of a different nature, intended purpose and method of use than the opponent’s goods. Furthermore, they are not in competition.

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 are directed at the average public and at business customers with specific professional knowledge or expertise in the field of electrical engineering.

Therefore, it is deemed that the degree of attention paid by the relevant public in relation to the goods at issue may vary from average to high.

c) The signs

Earlier trade mark	Contested sign

The relevant territory is 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 trade mark is a figurative mark containing the verbal element ‘EDISON’, depicted in standard upper case letters, and preceded by a figurative element that is most likely to be perceived as a stylised lower case letter ‘e’.

The signs’ common verbal element ‘EDISON’ will be perceived by the relevant public as a surname reference to Thomas Edison, an inventor who is known for having developed such devices as the electric light bulb, the phonograph and the motion picture camera. Thomas Edison is famous for these inventions and it is considered that his name would be known to a great number of consumers of the European Union. It can also not be ruled out that a part of the public will only see this element as a surname as such or with no meaning.

The element ‘EDISON’ is not descriptive, allusive or otherwise weak in relation to the relevant goods, since it does not describe or allude to any of the possible characteristics of the goods. Therefore, it has an average degree of distinctiveness.

The figurative element at the beginning of the earlier mark may be perceived as a stylised letter ‘e’. This element will be perceived as a reference to ‘energy’ or ‘electricity’ (14/03/2017, T 276/15, e/e, EU:T:2017:165, §27-33). It still achieves a weak degree of distinctiveness regardless of its stylisation.

The contested sign is a figurative mark as well, consisting of the verbal element ‘EDISON’ in bold yellow upper case letters, underlined in the same typeface as the verbal element and placed inside a black rectangular background.

The figurative elements, namely the bold underline of the verbal element ‘EDISON’, the yellow colour and the black rectangular background, are considered to be commonplace and banal. As such, they are non-distinctive elements.

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

Visually, the signs are similar to the extent that they coincide in the sequence of letters ‘EDISON’. They differ in the additional element of the stylised lower case letter ‘e’ in the earlier mark and in the figurative elements of the contested sign. As all of them are weak or banal elements, it is considered that the public will pay less attention to them.

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

Aurally, irrespective of the different pronunciation rules in the relevant territory, the signs coincide in the string of letters ‘EDISON’ which are present in both signs. They differ in the letter ‘e’ of the earlier sign, which is considered to be weak and may also not be pronounced by part of the public.

Therefore, the signs are either aurally similar to a high degree or identical.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. As the relevant public will most likely associate both signs with the inventor Thomas Edison or with an English surname as such, said signs are conceptually highly similar as they only differ in the weak verbal element ‘e’ of the earlier sign.

For the part of the public who will not see a meaning in the verbal element ‘Edison’, the signs differ conceptually in the verbal element ‘e’ of the earlier sign, whose importance is very limited due to its weak character. Therefore the signs are conceptually not similar for this part of the public.

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 marks 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 their 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, despite the presence of a weak element in the earlier mark, as stated above in section c) of this decision.

e) Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier marks on the market, the association which can be made with the registered marks, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C-251/95, Sabel, EU:C:1997:528, § 22).

In the present case, the contested goods have been found to be partly identical, partly similar and partly dissimilar to the opponent’s goods. The relevant public, consisting of business customers and the average public, displays a degree of attention that may vary from average to high.

Moreover, the signs are visually similar to an above than average degree, and aurally similar to a high degree or identical, to the extent that they coincide in the verbal element ‘EDISON’. The differentiating elements, that are the stylised letter ‘e’ of the earlier mark and the figurative elements of the contested sign, are considered to be weak elements, to which the relevant public normally pays less attention. The signs are either conceptually highly similar or differ for that part of the public which only understands the weak element ‘e’ in the earlier sign.

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

The applicant argues that several trade marks were registered with the word ‘EDISON’ as European Union trade marks, some of which coexist with the opponent’s earlier marks.

According to case-law, the possibility cannot be ruled out that the coexistence of two marks on a particular market might, together with other elements, contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public (03/09/2009, C-498/07 P, La Española, EU:C:2013:302, § 82). In certain cases, the coexistence of earlier marks in the market could reduce the likelihood of confusion that the Office finds between two conflicting marks (11/05/2005, T-31/03, Grupo Sada, EU:T:2005:169, § 86). However, that possibility can be taken into consideration only if, at the very least, during the proceedings before the EUIPO concerning relative grounds for refusal, the applicant for the European Union trade mark duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the earlier marks upon which it relies and the intervener’s earlier mark on which the opposition is based, and provided that the earlier marks concerned and the marks at issue are identical (11/05/2005, T‑31/03, Grupo Sada, EU:T:2005:169, § 86).

In this regard it should be noted that formal coexistence in national or Union registries of certain marks is not per se particularly relevant. It should also be proved that they coexist in the market, which could actually indicate that consumers are used to seeing the marks without confusing them. Last but not least, it is important to note that the Office is in principle restricted in its examination to the trade marks in conflict.

Only under special circumstances may the Opposition Division consider evidence of the coexistence of other marks in the market (and possibly in the register) at national/Union level as an indication of ‘dilution’ of the distinctive character of the opponent’s mark that might be contrary to an assumption of likelihood of confusion.

This has to be assessed on a case-by-case basis, and such an indicative value should be treated with caution as there may be different reasons as to why similar signs coexist, e.g. different legal or factual situations in the past, or prior rights agreements between the parties involved.

Therefore, in the absence of convincing arguments and evidence thereof, this argument of the applicant must be rejected as unfounded.

The applicant further argues that, as the two product groups operate on two completely different markets, likelihood of confusion can be excluded.

However, the appreciation of likelihood of confusion depends on numerous elements, and, in particular, the degree of similarity between the marks and between the goods identified. In the case at hand, as mentioned above, part of the goods are identical or similar, therefore logically they coincide in the same field of business. Furthermore, the comparison of the goods must be based on the wording indicated in the respective lists of goods. Any actual or intended use not stipulated in the list of goods is not relevant for this comparison since it is part of the assessment of likelihood of confusion in relation to the goods on which the opposition is based and against which it is directed; it is not an assessment of actual confusion or infringement (judgment of 16/06/2010, T-487/08, Kremezin, EU:T:2010:237, § 71 ).

It is finally argued by the applicant that its EUTM has a reputation.

The right to a EUTM begins on the date when the EUTM is filed and not before, and from that date on the EUTM has to be examined with regard to opposition proceedings.

Therefore, when considering whether or not the EUTM falls under any of the relative grounds for refusal, events or facts that happened before the filing date of the EUTM are irrelevant because the rights of the opponent, insofar as they predate the EUTM, are earlier than the applicant’s EUTM.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion because the differences between the signs are confined to weak or non-distinctive elements and aspects. Therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration No 3 315 991.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical to those of the earlier trade mark.

The rest of the contested goods are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this Article and directed at these goods cannot be successful.

For the sake of completeness, it must be mentioned that the opposition must fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods because the signs are obviously not identical.

The Opposition Division will now examine the opposition in relation to the European Union trade mark No 11 980 729 (word mark ‘EDISON’), which was also claimed as an earlier right.

f) The goods

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

Class 7: Alternators; Exhausters, Belts for motors and engines, Bicycle dynamos, Mixing machines, Air compressors, Machines for the compression, exhaustion and blowing of gas, Centrifugal machines, Power operated saws, Motorised excavators, Cutters, Punching machines, Apparatus for welding, Extractors for mines, Fuel pumps, Fuel conversion pumps, Fuel savers, Aerators, Belts for machines, Bulldozers; Centrifuges (machines); Coalcutting machines; Concrete mixers [machines]; Condensing installations; Control cables for machines, engines or motors; Materials handling machines; Crushing machines; Electric scissors; Derricks; Drainage machines; Drilling machines; Dynamos; Earth moving machines; Electric hammers; Elevator belts; Elevators [lifts]; Motors and engines (except for land vehicles); Excavators; Extractors for mines; Filtering machines; Foundry machines; Fuel conversion apparatus for internal combustion engines; Blowing machines for the compression, exhaustion and transport of gases; Aerators; Generators (current -); Electrical generators; Mincing machines; High pressure washers; Hydraulic engines and motors; Hydraulic turbines; Igniting magnetos; Machine tools; Metalworking machines; Milling machines; Mine borders; Molding machines; Oil refining machines; Ore treating machines; Pneumatic hammers; Basket presses; Propulsion mechanisms other than for land vehicles; Pulleys (parts of machines); inflators; Robots (machines); Roller bearings; Separators; Sewage pulverisers; Steam/oil separators; Stone working machines; Transmission chains other than for land vehicles; Pneumatic tube conveyors; Hydraulic turbines; Turbocompressors; Valves (parts of machines); compacting machines for waste; Garbage disposals, waste disposal machines; Electrical generators using solar cells.

Class 9: Solar panels.

Class 11: Solar collectors for heating, Heat accumulators, Steam accumulators, Atomic piles, Nuclear reactors, Autoclaves, Pressure cooking saucepans, electric, Bath installations, Bread-making machines; Burners, flues, chromatography apparatus for industrial purposes, electric coffee makers, coffee filters, gas condensers, chilling apparatus and installations, apparatus for dehydrating food waste, desalination installations, extermination apparatus, distillation apparatus, drying devices, fuel economisers, heating apparatus and installations, fans for air conditioning, bathroom accessories, domestic fireplaces, flues, freezers, furnaces, not for laboratory use, gas boilers, heat pumps, humidifiers, hydrants, hydromassage apparatus, ice boxes, incinerators, ionisation apparatus for the treatment of air, dryers, boilers, treatment installations for fuel and nuclear material, installations for the processing of nuclear fuel and nuclear material, installations for the purification of waste water, electric radiators, refining towers for distillation, refrigerating apparatus and machines, refrigerators, heat regenerators, roasters, safety accessories for water or gas apparatus and tubes, showers, washbasins, solar furnaces, solar thermal collectors for heating, steam boilers, installations for steam generating, sterilisers, stoves, installations for ventilating and air conditioning, taps (faucets), thermostat valves (parts of heating installations), toilets (water closets), projectors, thermal solar panels for heating, water conduits and installations, water distribution installations; Water filtration apparatus, Apparatus for water suction, Water or gas apparatus and pipes (regulating accessories for-), Water or gas apparatus and pipes (safety accessories for -), Water purification installations, Watering machines for agricultural purposes, Pipes and tubes for sanitary installations, Thermal solar panels.

The remaining contested goods are the following:

Class 8: Specialty application tools for cable ties, namely cable guns.

Class 9: Circuit testers; stud, pipe and voltage detectors.

Class 11: Lanterns; work lights and inspection lamps; torches.

Class 20: Cable ties for fastening electrical conductors.

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.

The remaining contested goods are cable guns, circuit testers, lanterns and other lights and cable ties. They have nothing in common with the opponent’s goods in Classes 7, 9 and 11 which are different kinds of machines, generators, extractors (all in Class 7), solar panels (Class 9) or solar collectors, heating and chilling apparatus, bath installations, cooking machines, toilets, safety accessories, pipes and water purification installations, etc. (Class 11). These goods serve a different purpose and are of a different nature, they are neither in competition nor complementary and are directed at different consumers. These goods are also produced by different companies and available through different distribution channels. For these reasons, these goods are considered to be dissimilar.

g) Conclusion

According to Article 8(1)(b) EUTMR, the similarity of the goods or services is a condition for a finding of likelihood of confusion. Since the contested goods and the goods of the opponent’s mark are clearly dissimilar, one of the necessary conditions of Article 8(1)(b) EUTMR is not fulfilled, and the opposition must be rejected as unfounded, as far as it is based on this earlier mark.

For the sake of completeness, it must be mentioned that the opposition must also fail insofar as based on grounds under Article 8(1)(a) EUTMR and directed against the remaining goods because these goods are obviously not identical.

COSTS

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

Since the opposition is successful for only some of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Swetlana BRAUN

Lars HELBERT

Tu Nhi VAN

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.