DECISION

of the Second Board of Appeal

of 30 November 2020

In case R 2237/2019-2

Nobel Quest International Pte Ltd
OMC Chambers, P. O. Box 3152 Road Town Tortola British Virgin Islands	Applicant / Appellant

represented by CAM Trade Marks and IP Services, St John's Innovation Centre Cowley Road, Cambridge CB4 0WS, United Kingdom

v

CTBAT International Co. Limited
29th Floor, Oxford House, Taikoo Place 979 King's Road Island East Hong Kong Hong Kong Special Administrative Region of the People’s Republic of China	Opponent / Defendant

represented by HOGAN LOVELLS, Avenida Maisonnave 22, 03003 Alicante, Spain

APPEAL relating to Opposition Proceedings No B 3 057 925 (European Union trade mark application No 17 885 517)

The Second Board of Appeal

composed of S. Stürmann (Chairperson), C. Negro (Rapporteur) and A. Szanyi Felkl (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 10 April 2018, Nobel Quest International Pte Ltd (‘the applicant’) sought to register the figurative mark

for the following list of goods:

Class 34 – Tobacco; smokers' articles; matches; cigarettes; cigarette cases; cigarette filters; cigarette holders; cigarette paper; cigarette tips; mouthpieces for cigarette holders; tobacco pipes; cigarillos; cigars; ashtrays for smokers; lighters for smokers.

2. The application was published on 2 May 2018.

3. On 9 July 2018, CTBAT International Co. Limited (‘the opponent’) filed an opposition against the registration of the published trade mark application for all the above goods.

4. The grounds of opposition were those laid down in Article 8(1)(b) EUTMR.

5. The opposition was based on the following earlier rights:

1. EUTM registration No 13 298 468 for the word mark

SHUANGXI

filed on 25 September 2014 and registered on 4 February 2015 for the following goods on which the opposition is based:

Class 34 – Cigarettes; tobacco; tobacco products; lighters; matches; smokers' articles.

2. EUTM registration No 13 337 365 for the figurative mark

filed on 8 October 2014 and registered on 24 February 2015 for the following goods on which the opposition is based:

Class 34 – Cigarettes; tobacco; tobacco products; lighters; matches; smokers' articles.

3. United Kingdom trade mark registration No 2 646 948 for the figurative mark

filed on 28 December 2012 and registered on 12 April 2013 for the following goods on which the opposition is based:

Class 34 – Cigarettes; tobacco; cigarettes containing tobacco substitutes, not for medical purposes; cigarette cases; cigarette holders; ashtrays for smokers; matches; lighters for smokers; cigarette filters; cigarette paper.

6. By decision of 26 August 2019 (‘the contested decision’), the Opposition Division upheld the opposition for all the contested goods and the EUTM application was rejected in its entirety. The applicant was ordered to bear the costs. The Opposition Division first examined the opposition in relation to the earlier EUTM registration No 13 298 468. It gave, in particular, the following grounds for its decision:

• All the contested goods are identical to the goods covered by the earlier mark.

• The goods are directed at the public at large and the degree of attention is considered to vary from average to high. Although tobacco products are relatively cheap articles for mass consumption, smokers are considered particularly careful and selective about the brand of cigarettes they smoke, so a higher degree of brand loyalty and attention is assumed when tobacco products are involved. The same is not valid for other goods in Class 34 such as matches or lighters, for which the degree of attention is deemed to be average.

• The relevant territory is the European Union.

• The earlier mark is a word mark consisting of the word ‘SHUANGXI’, which has no meaning in any of the European languages and is, therefore, distinctive.

• The contested sign is a figurative mark consisting of the depiction of a rectangle, which recalls the shape of a black pack of cigarettes on the top part of which the word ‘XISHANGXI’ is depicted in white capital letters. Below this word three white rounded Asian characters or ideograms are placed together with the stylised depiction of two Chinese paper lanterns. The word ‘XISHANGXI’ and the figurative elements are devoid of any semantic content and do not possess any relation with the goods in Class 34 and are, therefore, distinctive. However, the shape of the pack of cigarettes is deemed to be non-distinctive in relation to goods in Class 34. The contested sign has no element that could be considered clearly more dominant than other elements.

• Contrary to what the opponent claims in its observations the Asian characters and the word elements of the signs will not be understood by the relevant public in the European Union. Therefore, these elements will be perceived in their totality or in some of their parts as oriental characters, such as Chinese, Japanese or Korean characters and possibly as Chinese words.

• Visually, the signs coincide in the letters ‘SH*ANGXI’. However, they differ in the additional third letter ‘U’ of the earlier mark ‘SHUANGXI’ and the first two letters ‘XI’ of the contested sign’s verbal element ‘XISHANGXI’. Also, the marks differ in the additional figurative distinctive elements of the contested sign, including the non-distinctive shape of a pack of cigarettes. Therefore, the signs are visually similar to an average degree.

• Aurally, the pronunciation of the signs coincides in the sound of the letters ‘S-H-*- A-N-G-X-I’, present identically in both signs. However, they differ in the sound of the third letter ‘U’ of the earlier mark ‘SHUANGXI’ and in the sound of the first two letters ‘XI-‘ of the contested sign which correspond to the last syllable of both signs, namely ‘XI’. This circumstance counterbalances the degree of dissimilarity that they give to the signs overall. Consequently, the signs are aurally similar to an average degree.

• Conceptually, although the public in the relevant territory will perceive the meaning of some of the contested sign’s figurative elements (the depiction of two Chinese paper lanterns) and also the concept that arises from the depiction of the pack of cigarettes, which is nevertheless non-distinctive, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

• 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 which must be seen as normal.

• As regards the contested sign account must be taken of the fact that it is the verbal component of the sign that will have a stronger impact on the consumer. The figurative components will not be used to refer to the sign nor describe it.

• As the goods are identical and there is a visual and aural similarity to an average degree between the signs, and in the absence of any other factor, a likelihood of confusion exists, also because the differences between the signs are confined to secondary elements and aspects. This is valid also for those goods for which the consumers are expected to pay more attention, such as cigarettes and tobacco.

7. On 1 October 2019, the applicant filed an appeal against the contested decision. The statement of grounds of the appeal was received on 20 and 23 December 2019.

8. On 6 February 2020, the Registry of the Boards of Appeal informed the applicant that the evidence received did not comply with the conditions of Article 55 EUTMDR. The applicant was given one month to rectify the deficiency.

9. On 18 June 2020, the applicant submitted documents with the intension of rectifying the deficiency. It requested the Board to exercise its discretion to accept this deficiency remedy filed out of time taking into consideration the current extraordinary times and disruption caused to the representative’s normal case tracking procedures.

10. On 2 July 2020, the Registry of the Boards of Appeal acknowledged receipt of the applicant’s communication and informed the applicant that it had been received after the time-limit. The Registry of the Boards of Appeal informed the applicant that the Board would decide whether the evidence would be taken into account. A copy of said communication was forwarded to the opponent.

11. On 17 July 2020, the opponent submitted its observations in reply.

Submissions and arguments of the parties

12. The arguments raised in the statement of grounds may be summarised as follows:

• The Opposition Division erred in its assessment of the signs and in the global assessment, in particular with respect to the weight given to the care by which the average consumer purchases tobacco products and the absence of any consideration of the conceptual differences.

• Despite the identity of goods in Class 34, the signs are sufficiently dissimilar including a high level of attentiveness of the average consumer regarding tobacco products, there is no likelihood of confusion between the marks in comparison.

• The Opposition Division erred in dismissing any real relevance to the figurative elements. Given the distinctiveness of the figurative elements, it is an error in law to merely allude to the principle that generally words take precedence to figurative elements in their impact on the consumer without weighing the actual visual impact of the actual figurative elements which clearly in this case are significant. Even the rectangle shape adds to the overall distinctiveness of the figurative elements since a rectangle form is not coterminous with a ‘shape of a pack of cigarettes’ and this shape cannot be dismissed as intrinsically non-distinctive for all goods in Class 34.

• The Opposition Division erred in its assessment of the similarity of the signs, in relation to the word elements. It overlooked the importance of the differences in the signs prefixes ‘SHU’ vs ‘XISH’, or ‘SHUAN’ vs ‘XISHUAN’ and erroneously dismissed these differences as ‘secondary elements and aspects’. On the contrary, these differences play an essential role in distinguishing the signs, the first part is what most distinctly will be remembered by the consumer.

• The Opposition Division placed too great an emphasis on the coincidence of the majority of the letters in the signs and thus, failing to give proper consideration to the fact that the very different prefixes give an entirely different overall visual impression. A properly balanced assessment of visual similarity would conclude that the signs are visually similar only to a low degree even just from the perspective of the word elements.

• The Opposition Division failed to correctly compare the signs from an aural perspective, in particular by failing to give adequate weight to the differences in the prefixes and erroneously claiming that the circumstance of the coincidence of the final two letters ‘XI’ ‘counterbalances the degree of dissimilarity that they give to the signs overall’. This conclusion is artificial and arbitrary. The sound of the final syllable in both marks cannot counteract the important phonetic differences in the first syllable. Given the unusual or difficult pronunciation of the words for the average EU citizen, the pronunciation of the first part would be invariably emphasised more than the remainder of the word which may have a lighter intonation. A properly balanced assessment of aural similarity would have concluded the signs to be aurally similar only to a low degree.

• In the global assessment the Opposition Division failed to apply correctly its own statements that smokers are considered particularly careful and selective about the brand of cigarettes they smoke, so a higher degree of brand loyalty and attention is assumed when tobacco products are involved. The high degree of attentiveness of the relevant public should have been given greater weight. Given the differences in the signs as well as the high level of attention of the average consumer who would make a purchase only after careful consideration, the Opposition Division was wrong in not concluding that there is no likelihood of confusion between the signs despite identity of goods.

• With regard to other goods in Class 34 such as matches or lighters which are associated with smoking, although the degree of attention may not be quite as high as for tobacco products, there is still an above average level of attention due to the association with tobacco products. Together with the differences in the signs , there would be no risk of confusion for these products.

• The Opposition Division erred in not giving any weight to the conceptual difference between the signs (for example from the depiction of two Chinese paper lanterns), a relevant factor that should have been taken into account in the global assessment.

• The applicant makes reference to national decisions in support of this claim. The Danish decision, issued 12 September 2019, rejects the opposition against a similar application – with the addition of some lesser important figurative elements – filed in Denmark based on the same word mark ‘SHUANGXI’. Regarding the visual similarity assessment, the Danish Office concluded that there was a low but not insignificant degree of similarity between the dominant word element in the mark of the proprietor and the earlier mark. In addition, the less dominant, but still distinctive, figurative elements of the proprietor’s mark contributed to further visual differences between the marks. The signs were found to have only a low degree of aural similarity.

• Likewise the decisions taken from the Appeal Court of Taiwan and the Court of the Republic of Kyrgyz must be taken into account, both likewise helping to show that the contested decision should be overturned.

13. The arguments raised in response may be summarised as follows:

• The figurative elements contained in the contested mark do not depart from common oriental decorative objects. Therefore, when these figurative elements are combined with a verbal element in Latin alphabet, the non-Chinese-speaking public will immediately turn to this element as the sole element capable of indicating the commercial origin of the goods. As regards the part of the relevant public who understands Chinese, their understanding will only emphasise the verbal element since the Chinese characters are a transliteration of the term ‘XISHANGXI’ (case-law is cited in support of this claim).

• Even if the figurative elements were not visually negligible, the verbal element in Latin alphabet in the contested mark is significant and cannot be neglected since it is the element that the relevant public will use to refer to the mark, whether it understands its meaning or not.

• Case-law has made it very clear that the argument that the beginning of a sign has more importance than its ending, cannot prevail in all cases and cannot, in any event, undermine the principle that an examination of the similarity of the marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not examine its individual details.

• The visual similarity is based on the fact that the verbal elements of the contested mark and the earlier mark are of a similar length (nine and eight letters, respectively) and the identical letters are reproduced in the same order. Even if the signs were considered to be visually similar to a low degree, a finding of a likelihood of confusion would still be correct and consistent with the case-law of the Boards of Appeal and of the General Court (case-law is cited in support of this claim).

• Aurally, ‘XI’ will most likely be pronounced as ‘SHI’ by part of the relevant public and especially by those among them who speak Chinese. Consequently, two out of three syllables of the contested mark’s verbal element are identically reproduced in the earlier mark.

• For the part of the public who understands Chinese, the characters included in the contested mark and in the earlier figurative mark EUTM No 13 337 365 will be pronounced identically as the verbal elements written in Latin characters, as the latter are the mere transliteration of the Chinese characters included in the signs. Therefore, for this part of the relevant public these characters will reinforce the aural similarity between the signs. Even if the aural similarity were to be low this would still not rule out a likelihood of confusion in accordance with the case-law.

• The applicant’s claim that the Opposition Division did not give proper consideration to the conceptual differences between the signs is unfounded. To support this alleged conceptual difference, the applicant refers only to the paper lanterns depicted in the contested mark without further explanation.

• However, a non-negligible part of the relevant public will consider the signs to be conceptually similar. This is because both signs will be perceived as Chinese or Asian terms by the relevant EU public (13/04/2010, T-103/06, YoKaNa, EU:T:2010:137, § 40). The conceptual similarity will be further reinforced by the figurative elements contained in the contested mark. The paper lanterns, the lucky knots and the Chinese characters will immediately be perceived as classical decorative patterns from the Far East by the relevant public. The combination of verbal and figurative elements in the contested mark will thus evoke a Chinese or Asian origin rendering it conceptually similar to the earlier marks and not the opposite.

• The goods in question consist of tobacco products and various kinds of accessories in Class 34, which are aimed at the general public. These consumers are generally deemed to have a medium to high level of attention, given that they tend to feel some attachment to certain brands. Nevertheless, despite their slightly higher level of attention, these consumers are still likely to confuse the marks, in view of the (high) similarities between the signs and the identity of the goods.

• Moreover in relation to Class 34 products a likelihood of confusion can exist even where there is a low degree of similarity of the signs (case-law is cited in support of this claim).

• In its Addendum, the applicant relies on three previous national decisions. In this respect, it should be noted that the European Union trade mark law is an autonomous system with its own set of rules peculiar to it. These decisions are therefore not binding upon the EUIPO and cannot decisively affect the assessment of the present case.

Reasons

14. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

15. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

Article 8(1)(b) EUTMR – Likelihood of confusion

16. In accordance with Article 8(1)(b) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered if because of its similarity to the earlier trade mark and the identity or similarity of the goods covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.

17. The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of that article (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 16‑18; 29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 30).

18. It is clear from that provision that a likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered by the application for registration are identical or similar to those in respect of which the earlier mark is registered. Those conditions are cumulative (12/10/2004, C-106/03, Hubert, EU:C:2004:611, § 51).

19. The likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case. That 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. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. In that perspective, the more distinctive the earlier mark, the greater will be the likelihood of confusion (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22-24).

20. The Opposition Division first examined the opposition in relation to the earlier EUTM registration No 13 298 468. The Board will proceed the same way.

Relevant public

21. In the present case, the relevant territory is the European Union.

22. The Opposition Division correctly found that the goods at issue were directed at the public at large. As to the degree of attention of the relevant public, the purchasers of tobacco, cigarettes, cigarillos and cigars are generally very attentive, brand loyal and will buy those goods in principle only after careful consideration. Therefore, their degree of attention is higher than average, just as found in the contested decision and argued by the applicant. However, this high degree of attention does not apply to all the relevant goods, such as cigarette filters, matches or lighters, for which the degree of attention is deemed to be average.

Comparison of the goods

23. It has not been disputed by the parties that the goods covered by the trade marks are identical, as correctly found in the contested decision.

Comparison of the marks

24. The signs to be compared are:

    SHUANGXI
    Earlier EU mark	Contested sign

25. In general terms, two signs are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (23/10/2002, T-6/01, Matratzen, EU:T:2002:261, § 30; upheld on appeal by order of 28/04/2004, C‑3/03 P, Matratzen, EU:C:2004:233; 12/07/2006, T-97/05, Marcorossi, EU:T:2006:203, § 39; 22/06/2005, T-34/04, Turkish Power, EU:T:2005:248, § 43; upheld on appeal by order of 01/06/2006, C‑324/05 P, Turkish Power, EU:C:2006:368).

26. The earlier mark ‘SHUANGXI’ is a word mark whereas the contested mark contains the word element ‘XISHANGXI’ in white capital letters and figurative elements (three white ideograms – Chinese characters perceived as graphic elements by the relevant public –, two Chinese paper lanterns, Asiatic-style drawings) on a black vertical rectangle reminiscent of a packet of cigarettes taking into account the shape including the horizontal thin line placed in the top half of the rectangle, corresponding to the usual cut for opening of the packet.

27. Visually, although the figurative elements of the contested sign are far from being negligible, the word element ‘XISHANGXI’ depicted in white capital letters against a black background is clearly legible and placed at the top of the mark. Further, the figurative elements will be perceived as classic Chinese characters and decorations. Furthermore, according to the case-law, in complex marks, consumers tend to attach more importance to a word element than a figurative element as an indicator of origin (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37). Bearing in mind the above, even though the figurative elements occupy a significant portion of the mark, the word element ‘XISHANGXI’ will likely be the element used by the consumer to identify the sign.

28. The word element of the contested sign and the earlier sign have almost the same lengths (nine letters for the contested sign against eight for the earlier sign) and they share the letters S, H, A, N, G, X, and I in the same order. They firstly differ in that the word in the contested sign contains the additional letters ‘XI’ at the beginning. In this regard, although it is settled case-law that the consumer generally pays greater attention to the beginning of a mark than to the end, as argued by the applicant, it must, however, be borne in mind that that does not apply in all cases and cannot call into question the principle that the examination of the similarity of trade marks must take into account the overall impression created by those marks (28/03/2019, T‑259/18, Unifoska / NITROFOSKA et al., EU:T:2019:198, § 32 and the case-law cited therein). In the present case, the first letters ‘XI’ in the contested sign are a repetition of the last letters ‘XI’ (also present in the earlier sign) so that the letters ‘XI’ frame the part ‘SHANG’. As a consequence, that part ‘SHANG’ will be noticed. It is very similar to the first part ‘SHUANG’ of the earlier sign. Admittedly, the earlier mark contains a letter ‘U’, which is not present in the contested sign. However, given that the letter ‘U’ is surrounded by the letters ‘SH’ and ‘ANGXI’ which are exactly reproduced in the contested sign, its presence in the earlier sign does not make a striking visual difference in comparison with the contested sign.

29. In view of the foregoing considerations, the differences between the signs, including the figurative elements of the contested sign which are absent in the earlier mark, cannot counteract the similarities. Therefore, it must be found that there is a below average degree of visual similarity.

30. Aurally, as argued by the applicant, both signs are difficult to pronounce for the average EU consumer. In both signs, the final letters ‘XI’ will be probably separated from the letter ‘G’ which precedes them and pronounced as one syllable. The first letters ‘XI’ in the contested sign will also be pronounced as one syllable followed by the sound of the letters ‘SH’. The pronunciation of the string of letters ‘SHANG’ in the contested sign and ‘SHUANG’ in the earlier sign is very similar. The difference due to the additional syllable ‘XI’ in the contested sign is not such so as to affect the phonetic comparison in a significant manner because it only concerns a short syllable which repeats the identical final syllable. The applicant’s argument that given the unusual or difficult pronunciation of the words, the pronunciation of the first part would be invariably emphasised more than the remainder of the word is unfounded. Indeed the differentiating syllable ‘XI’ is a small difference in comparison with the rest of the contested sign ‘SHANGXI’ which is highly similar to the earlier sign ‘SHUANGXI’. Therefore, the signs are aurally similar to an average degree just as found in the contested decision.

31. Conceptually, given that Chinese is not an official language of the EU and that most of the members of the EU do not have any knowledge of Chinese, the signs at issue have no meaning for the relevant public, as held in the contested decision. However, the public will likely link both signs to the limited extent that they will perceive them as Chinese terms transliterated into the Latin alphabet. The figurative elements of the contested sign reinforce this conceptual link since they represent classic Chinese decorations.

32. For the insignificant part of the EU public who understands Chinese, both marks apparently refer to the same concept of happiness, as argued by the opponent and not challenged by the applicant. The earlier mark would mean ‘double happiness’ while the contested mark would mean ‘happiness upon happiness’.

Overall assessment of the likelihood of confusion

33. It is undisputed that the earlier mark’s level of inherent distinctiveness is average.

34. Applying the interdependence principle, given the earlier mark’s average degree of inherent distinctiveness, the visual and aural similarity (of a below average and average degree respectively) found between the signs, their semantic connexion to the extent that their word elements will likely be perceived as Chinese terms transliterated into the Latin alphabet, as well as the identity of the goods concerned and the relevant public’s average to higher than average level of attention, the Board confirms that there is a likelihood of confusion on the part of the relevant public in the EU.

35. Given the similarity found between the marks and the identity between the goods concerned, the fact that the level of attention of part of the relevant public is high is insufficient to exclude any likelihood of confusion. Even for a public with a high level of attentiveness, the fact remains that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (16/07/2014, T-324/13, Femivia, EU:T:2014:672, § 48 and the case-law cited therein).

36. Finally, the applicant rectified the formal deficiency (relating to the texts of the three national decisions submitted by the applicant as annexes to the statement of grounds) as requested by the Registry pursuant to Article 55 EUTMDR after the expiration of the time-limit. Nevertheless, the Board has decided to take them into account since the Board finds it possible to clearly establish to which arguments these documents refer (Article 51(3) of the Rules of Procedure of the Boards of Appeal).

37. However, they are not capable of undermining the above findings of a likelihood of confusion. As argued by the opponent, decisions of national courts and of national offices in cases regarding conflicts between identical or similar trade marks on the national level do not have a binding effect on the Office. According to case-law, the European Union trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it and applies independently of any national system. Accordingly, the registrability of a sign as a European Union trade mark is to be assessed on the basis of the relevant legislation alone (13/09/2010, T-292/08, Often, EU:T:2010:399, § 84; 25/10/2006, T-13/05, Oda, EU:T:2006:335, § 59). Therefore, the decisions adopted in a Member State or in a state that is not a member of the European Union are not binding for the Office (24/03/2010, T-363/08, Nollie, EU:T:2010:114, § 52). In any event, as regards the decision of the Danish Office, it must be noted that the perception of the Danish public is not the only relevant one as the relevant territory is the whole EU.

38. In light of the above, the appeal is dismissed.

Costs

39. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the applicant, as the losing party, must bear the opponent’s costs of the opposition and appeal proceedings.

40. As to the appeal proceedings, these consist of the opponent’s costs of professional representation of EUR 550.

41. As to the opposition proceedings, the Opposition Division ordered the applicant to bear the opposition fee of EUR 320 and the opponent’s representation costs which were fixed at EUR 300. This decision remains unaffected. The total amount for both proceedings is therefore EUR 1 170.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the applicant to bear the costs incurred by the opponent in the appeal proceedings amounting to EUR 550. The total amount to be paid by the applicant in the opposition and appeal proceedings is EUR 1 170.

Signed S. Stürmann

Signed C. Negro

Signed A. Szanyi Felkl

Registrar: Signed H.Dijkema