OPPOSITION No B 3 063 203

Bboxx Ltd, Second Floor, 11 Pilgrim Street, EC4V 6RN, London, United Kingdom (opponent), represented by Stratagem IPM LTD, Meridian Court Comberton Road, CB23 2RY, Toft, Cambridge, United Kingdom (professional representative)

a g a i n s t

Hofer Group S.r.l.-GmbH, Plan da la Sia 9, 39047 Santa Cristina Val Gardena (BZ), Italy (applicant), represented by Società Italiana Brevetti S.P.A., Stradone San Fermo 21/B, 37121 Verona, Italy (professional representative).

On 02/10/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 063 203 is partially upheld, namely for the following contested goods:

Class 9: All the contested goods except: alarm bells, electric; electrical access control apparatus; access security apparatus (electric -); access control systems (electric -); access control installations (automatic -); access control units (automatic -); beacons, luminous; blinkers [signalling lights]; luminous electric signs; electrical signalling apparatus; non-electrical distress beacons; optical fibers [fibres] [light conducting filaments]; metal direction indicator panels [electric]; pH meters; apparatus for measuring redox potentials; apparatus for measuring ultraviolet indexes; baby scales; electric signs, information carriers [electric or electronic]; information storage apparatus [electric or electronic]; target location apparatus [electric]; target seekers [electric]; target trackers [electric]; computer software; electrical engineering software; computer software for the remote control of electric lighting apparatus; computer software for time control; process controlling software; computer programs for searching the contents of computers and computer networks by remote control; computer software for the monitoring of computer systems; topographic apparatus [electric]; metal signboards [electric].

2. European Union trade mark application No 17 894 002 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 some of the goods of European Union trade mark application No 17 894 002 for the word mark ‘TOPBOXX’, namely against some of the goods in Class 9. The opposition is based on international registration designating the European Union No 1 274 256 for the word mark ‘BBOXX’. The opponent invoked Article 8(1)(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.

a) The goods

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

Class 9: Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; solar panels; portable solar panels; batteries; sealed batteries; solar batteries; rechargeable batteries; chargers for batteries; boxes for batteries; mountings and casings for solar panels and batteries; control units for the distribution of electricity; electricity inverters, inverters for power supplies; televisions, satellite decoders, DVD players, radios and other electronic apparatus for use with solar panels; chargers for mobile phones and other electronic apparatus; and parts and accessories for all the aforesaid goods.

Class 11: Apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; solar heating panels, solar panels used in heating and lighting; lamps powered by solar panels; electric lamps; mountings and casings for solar thermal collectors (heating); refrigerators; electric fans; parts and accessories for all the aforesaid goods.

The contested goods are the following:

Class 9: Apparatus and instruments for controlling electricity; apparatus and instruments for accumulating electricity; apparatus and instruments for switching electricity; apparatus and instruments for transforming electricity; apparatus and instruments for regulating electricity; apparatus and instruments for conducting electricity; computer software; temperature control apparatus [electric switches]; control panels for managing swimming pools; control modules (electric or electronic -); pressure regulators; temperature controlling apparatus; energy control devices; heat regulating apparatus; flow control installations [electric]; electronic indicator boards; temperature sensors; pH meters; ohmmeters; apparatus for measuring redox potentials; apparatus for measuring ultraviolet indexes; sound transmitting apparatus; beacons, luminous; blinkers[signalling lights]; detectors; circuit breakers; thermal switches; electric couplings; connections for electric lines; temperature indicating apparatus; gauges; measuring devices, electric; measuring instruments; measuring apparatus; electrical cabling; instrument panels [electric]; junction boxes [electricity]; glass covered with an electrical conductor; electric flow meters; contacts, electric; electric wiring harnesses; electric sensors; touch pads [electric]; electrical terminal blocks; electrical receivers; electrical circuit breakers; electric wires; electrical conductors; electric cables; inverters [electricity]; electricity transformers; switches, electric; accumulators, electric; converters, electric; electric oscillators; record players; electric circuit closers; collectors, electric; electrical recorders; electrical circuit testers; relays, electric; electric boosters; electrical adapters; electric couplings; electric couplings; electric connectors; electrical terminators; electric diodes; electrical rectifiers; electrical inductors; electric reactors; armatures [electricity]; electric thermostats; electric timers; limiters [electricity]; electrical transmitters; electrical controls; electrical circuits; terminals [electricity]; electrical amplifiers; buffers [electric]; electricity measuring instruments; electrical switch cabinets; electrical fuses; electrical distributors; battery chargers; electric cords; capacitors; junctions [electrical]; coils, electric; electric switch plates; resistances, electric; electrical power extension cords; ducts [electricity]; electrical plugs; batteries, electric; electric signs; electrical sockets; ducts [electricity]; push button panels (electrical -); inverters [electricity]; reducers [electricity]; connectors [electricity]; electrical adapters; electrical inductors; armatures [electricity]; limiters [electricity]; electric flasher switches; alarm bells, electric; electrical reducing transformers; terminals [electricity]; wire connectors [electricity]; insulated electrical cables; insulated electrical cables; insulated electrical cables; insulated electrical cables; mounting cords [electrical]; terminal controllers [electric]; electrical terminal connectors; integrated electronic circuits; junction boxes [electricity]; electric breakers [switches]; printed electrical circuits; topographic apparatus [electric]; tactile switches [electric]; metallic cables [electric]; domestic switches [electric]; electrical frequency converters; electric power supply sockets; cable junctions for electric cables; regulating modules (electric -); electric current switches; commutation (electric apparatus for -); power dividers [electric]; electric current meters; electrical controllers; measuring devices, electric; plates for batteries; connections for electric cables; connections for electric cables; connections for electric cables; electric circuit interrupters; electric control apparatus; regulating apparatus, electric; electrical switch timers; electric power analyzers; electric control panels; components for electric circuits; components for electric circuits; electric switch plates; housings for electrical apparatus; electrical switch assemblies; resistances, electric; power distributors [electrical]; electrical power extension cords; circuits [electric or electronic]; electrical power extension cords; converters, electric; electrical coupling sleeves; adapter connectors (electric -); mains testers (electric -); markers for electric wire; electric communication apparatus; contact blocks (electric -); distribution boards [electricity]; process controllers [electric]; electric batteries for vehicles; electrical wiring installations; switchgear [electric]; switchgear [electric]; interface cables [electric]; rotary switches (electric -); electric fuse boxes; terminal blocks (electrical connecting -); electric current transformers; electric current sensors; luminous electric signs; power strips with movable sockets; rechargeable electric batteries; electricity indicators; anti-interference devices [electricity]; inverters [electricity]; terminal boxes [electrical]; winding wires [electricity]; electric batteries for powering electric vehicles; push switches (electrical -); switchboxes [electricity]; connection units (electric -); connection units (electric -); electrical signalling apparatus; grids for batteries; safety relays [electric]; markers for electrical conductors; switched spurs [electric]; cable splices for electric cables; ducting for electric cables; ducting for electric cables; armatures for use in electrical apparatus; electrical circuit boards; connector sockets (electric -); contact boards (electric -); electrical resistance coils; electric terminal lugs; metallic wires [electric]; linear actuators [electric]; electrical resistance wire; electrical telephone wires; adapter cables (electric -); insulated electrical connectors; enamelled electric wires; plastic coated wire [electric]; electrical header connectors; underwater power cables; plug-in cartridges [electric]; electric valves [thermionic]; ducts [electricity]; electrical control boards; switch panels [electric]; electric control panels; mains transformers (electric -); electric current rectifiers; conduit for electric cables; conduit couplings [electric]; connection boards [electric]; cable channels (electric -); electric voltage transformers; electrical test apparatus; electrical control circuits; electrical distributing busbars; toggle switches [electric]; plug-in electrical connectors; sheaths for electric cables; push button switches (electrical -); panels for the connection of electricity; sheaths for electrical wires; electric light switches; splice connectors [electric]; monitoring apparatus, electric; electric power supply units; electric power supply units; batteries for electric vehicles; cables and wires; batteries for electric vehicles; detectors for electric meters; electrical cables for use in connections; connecting electrical cables; electrical charge controllers; uninterruptible electrical power supplies; electric telecommunications apparatus; electrical and electronic components; electrical engineering software; electric wire harnesses for automobiles; switchboxes [electricity]; electric power units; dry-cell batteries; metal ducts [electric]; monitoring units [electric]; socket outlets (electric -); splice boxes [electric]; electrical plugs; electrical plugs; electrical plugs; electrical delay lines; programming units (electric -); electric shunt boxes; control boxes (electric -); metal signboards [electric]; cable boxes (electric -); power adapters; power adapters; mounting cradles [electrical]; connections for electric lines; contact fuses (electric -); electrical power outlet boxes; plug boxes [electric]; junction boxes [electricity]; power line conditioners; electric blanking plugs; baby scales; sleeved rails, electric; electric control valves; electric control valves; electrical cells and batteries; converters for electric plugs; electricity conduits; switchboxes [electricity]; switchboxes [electricity]; distribution boxes [electricity]; branch boxes [electricity]; distribution consoles [electricity]; distribution boards [electricity]; switch points [electric]; junction boxes [electricity]; junction boxes [electricity]; control installations (electric -); electrical outlet plates; holders for electric coils; holders for electric coils; shaver sockets (electric -); electric and electronic components; electrical circuits and circuit boards; electric resistors [for telecommunication apparatus]; electric current control devices; choking coils for use in electrical apparatus; electric power distribution apparatus; electric capacitors [for telecommunication apparatus]; charging stations for electric vehicles; electric wire harnesses for automobiles; travel adaptors for electric plugs; electrical access control apparatus; power line protectors; electric fence energisers; process control units [electric]; mains power units (electric -); electrical remote control apparatus; junction sleeves for electric cables; electrical remote control apparatus; chargers for electric batteries; cable identification markers for electric cables; discharge tubes, electric, other than for lighting; tags for identifying electric cables; tags for identifying electric conductors; process controlling apparatus [electric]; tap changers for electric transformers; electricity storage apparatus; score display apparatus [electric]; mains monitoring apparatus (electric -); access security apparatus (electric -); electrical access control apparatus; electrical access control apparatus; panels for the distribution of electricity; identification sheaths for electric wires; information carriers [electric or electronic]; flow control installations [electric]; ballasts for electrical lighting fittings; junction boxes for electric wires; target location apparatus [electric]; electrical power distribution blocks; monitoring control apparatus [electric]; target seekers [electric]; safety monitoring apparatus [electric]; tags for identifying electric wires; electric power controllers; voltage regulators for electric power; target trackers [electric]; push leaf switches (electrical -); identification threads for electric wires; heat resistant electric wires; heat resistant electric wires; connection blocks [electric cable]; flexible sheaths for electric conductors; male connectors for electrical cables; regulated power supply apparatus; terminal boxes for electric conductors; wires (electric -) of metal alloys; rubber covered electrical wires; electric contacts of precious metal; threaded electrical cable connectors; fluorescent lamp ballast for electric lights; electricity mains apparatus; electric loss indicators; electricity measuring instruments; electricity measuring instruments; electricity control panels; photovoltaic apparatus for generating electricity; access control systems (electric -); winding wires [electricity]; electricity control panels; distribution boxes [electricity]; circulators [electric or electronic components]; mineral insulated electric cables; voltage surge suppressors; non-electrical distress beacons; flexible sheaths for electric cables; robotic electrical control apparatus; insulated cable for electrical installations; power adapters; joining units [electrical contacts]; skeleton switches [electric]; valve operators [electric controls]; noise suppressors [electrical components]; wireless controllers to remotely monitor and control the function and status of other electrical, electronic, and mechanical devices or systems; scientific and laboratory devices for treatment using electricity; apparatus for measuring, monitoring and analyzing electricity consumption; photovoltaic apparatus and installations for generating solar electricity; photovoltaic apparatus and installations for generating solar electricity; electric installations for the remote control of industrial operations; photovoltaic apparatus for converting solar radiation to electrical energy; temperature control apparatus [electric switches] for vehicles; temperature control apparatus [electric switches] for machines; photovoltaic installations for generating electricity [photovoltaic power plants]; optical fibers [fibres] [light conducting filaments]; electric control devices for energy management; electric cables for the transmission of sounds and images; data processing equipment and accessories (electrical and mechanical); electric motor checking [monitoring or supervision] apparatus; neon light indicators for use in electrical circuits; apparatus and instruments for controlling electricity; portable solar panels for generating electricity; electricity mains (materials for -) [wires, cables]; electric installations for the remote control of industrial operations; control stations (remote, electric or electronic -); apparatus for monitoring electrical energy consumption; apparatus for diagnosing electrical power installations; computer software for the remote control of electric lighting apparatus; gender changers in the nature of electrical adapters; process controlling apparatus [electric]; ignition (electric apparatus for remote -); electrical access control apparatus; apparatus for controlling power (electric); electric power controllers; temperature control apparatus [electric switches]; transmitters for the transmission of electric signals; cables for electrical signal transmission; electronic control circuits for electric fans; electric control devices for heating management; electrified rails for mounting spot lights; electronic control circuits for electric heaters; apparatus, instruments and cables for electricity; apparatus for controlling static electricity; valves (electric controls for automatically operating -); solar energy collectors for electricity generation; connecting modules for electric controls; solar panels; solar cells for electricity generation; information storage apparatus [electric or electronic]; monitoring apparatus, electric; electrical controls for irrigation sprinkler systems; starters for electric lights; power controllers; panels for the distribution of electricity; panels for the distribution of electricity; panels for the connection of electricity; electricity control panels; instruments for distributing electrical current; discharge tubes, electric, other than for lighting; discharge tubes, electric, other than for lighting; metal direction indicator panels [electric]; process controlling apparatus [electric]; monitors; control circuits; plugboards; electronic control systems; electronic control units; electronic control circuits; programmable controllers; thermostatically controlled valves; electric control apparatus; sensors used in plant control; temperature controlling apparatus; communications controllers; network controlling apparatus; boiler control instruments; boiler control instruments; access control installations (automatic -); access control units (automatic -); computer software for time control; process controlling software; computer programs for searching the contents of computers and computer networks by remote control; testing apparatus for checking electronic devices; temperature control apparatus [thermostats] for machines; computer software for the monitoring of computer systems.

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 contested alarm bells, electric; electrical access control apparatus; access security apparatus (electric -); access control systems (electric -); access control installations (automatic -); access control units (automatic -) are specific products related to security and safety, whereas the opponent’s goods are energy-related products, such as batteries, electricity-related apparatus and instruments and solar panels, and electronic products to be used with solar panels. Therefore, those goods do not have the same nature, purpose, method of use, end users, distribution channels or producers. Moreover, they are not complementary or in competition. The contested goods are even more different from the opponent’s goods in Class 11, which are apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes and related goods. Consequently, the contested goods are dissimilar to all the opponent’s goods in Classes 9 and 11.

The same reasoning applies to the contested beacons, luminous; blinkers [signalling lights]; luminous electric signs; electrical signalling apparatus; non-electrical distress beacons; optical fibers [fibres] [light conducting filaments]; metal direction indicator panels [electric], which are all signalling apparatus.

The contested pH meters are instruments for testing or measuring water.

The contested apparatus for measuring redox potentials; apparatus for measuring ultraviolet indexes; baby scales; topographic apparatus [electric] are measuring apparatus not related to energy-related products.

The contested electric signs; metal signboards [electric] are devices used to display a message/information.

The contested information carriers [electric or electronic]; information storage apparatus [electric or electronic] are devices to store information.

The contested target location apparatus [electric]; target seekers [electric]; target trackers [electric] are specific devices to which signals are transmitted or transferred.

The contested computer software; electrical engineering software; computer software for the remote control of electric lighting apparatus; computer software for time control; process controlling software; computer programs for searching the contents of computers and computer networks by remote control; computer software for the monitoring of computer systems refer to programmes required to enable a computer to perform a specific task.

All the abovementioned goods have nothing in common with any of the opponent’s goods in Class 9 (electricity-related apparatus and instruments, electronic apparatus, batteries and solar panels) or Class 11 (apparatus for lighting, heating, cooking, refrigerating, drying, ventilating, water supply, etc.) in terms of their nature, purpose and distribution channels. Furthermore, they are neither complementary nor in competition. The fact that some of the contested goods might be used in combination with some of the opponent’s goods does not make them complementary in the sense that one is indispensable for the use of the other, thereby leading the consumer to think that they originate from the same undertaking. Therefore, these goods are dissimilar to the opponent’s goods

The contested record players; sound transmitting apparatus; electric communication apparatus; electric telecommunications apparatus; score display apparatus [electric]; network controlling apparatus are at least similar to a low degree to the opponent’s televisions, satellite decoders, DVD players, radios and other electronic apparatus for use with solar panels as they can have the same nature and purpose. Moreover, they all can be electronic apparatus.

All the remaining goods are at least similar to a low degree to the opponent’s apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; and parts and accessories for all the aforesaid goods. The opponent’s goods cover a large variety of products, including goods that can be furnished by the same undertakings and distributed through the same distribution channels as the contested goods. Moreover, they can have the same end users.

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 at least similar to a low degree are directed at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price. In any case, none of the relevant goods are cheap goods purchased on a daily basis that could possibly lead to a low degree of attention, contrary to the opponent’s argument.

c) The signs and distinctiveness of the earlier mark

BBOXX	TOPBOXX
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C‑251/95, Sabèl, EU:C:1997:528, § 23).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C‑514/06 P, Armafoam, EU:C:2008:511, § 57). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

Both signs are composed of English words, including misspellings. The meanings of these elements have an influence on the conceptual aspect of the present comparison and can have an impact on the distinctiveness of the signs. Therefore, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark is the word mark ‘BBOXX’, which constitutes a misspelling of the English word ‘BOX’. This misspelling is not banal or common, but rather unusual, and therefore it is distinctive.

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

When an earlier mark is not descriptive (or is not otherwise non-distinctive), the mark will not necessarily have a higher degree of distinctive character just because there is no conceptual link to the relevant goods and services (16/05/2013, C‑379/12 P, H/Eich, EU:C:2013:317, § 71). Any higher degree of distinctiveness should be proved by the opponent by providing evidence of enhanced distinctiveness through use. Therefore, the opponent’s assertions regarding the high degree of inherent distinctiveness of the earlier mark are set aside.fdfd<fdf

The assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark has no meaning for any of the relevant 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.

The contested sign is the word mark ‘TOPBOXX’. The Court has held that, although average consumers normally perceive a mark as a whole and do not proceed to analyse its various details, when perceiving a word sign, they will break it down into elements which, for them, suggest a specific meaning or which resemble words known to them (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 57). As ‘TOP’ is meaningful and ‘BOXX’ will be perceived as ‘BOX’, the relevant public will break down the sign into ‘TOP’ and ‘BOXX’.

The English word ‘TOP’ is a generic term intended to generally promote the nature, function, quality or characteristics of goods or services. It is generally used in everyday language as well as in trade as a generic laudatory term and is unsuitable for referring to the commercial origin of the goods marked with the sign, thereby fulfilling the essential function of a trade mark (13/07/2005, T‑242/02, Top, EU:T:2005:284, § 93, 95; 07/11/2007, T‑57/06, Top iX, EU:T:2007:333, § 84; 12/07/2011, T‑374/08, Top Craft, EU:T:2011:346, § 60). Therefore, ‘TOP’ is non-distinctive.

Visually and aurally, the signs coincide in ‘BOXX’, present identically at the end of both signs. However, the signs differ in ‘TOP’ and ‘B’ in the contested and earlier sign respectively. It should be recalled that while it is true that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, it must be stressed that this argument cannot hold true in all cases and does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take account of the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components. In the present case, ‘TOP’, is non-distinctive. Moreover, the misspelling of the element ‘BOXX’ is rather striking and is likely to attract the consumers’ attention.

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

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs will be associated with the same meaning (‘box’), and the contested sign contains an additional non-distinctive concept (‘top’). Therefore, the signs are conceptually similar to an average degree.

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

d) Global assessment, other arguments and conclusion

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C‑39/97, Canon, EU:C:1998:442, § 17).

In the present case, the goods have been found to be similar at least to a low degree and dissimilar. They are directed at both the public at large and at business customers with specific professional knowledge or expertise with a degree of attention varying from average to high. The signs are similar overall because they share the same element ‘(B)BOXX’, which plays an independent and distinctive role in the contested sign and constitutes almost all the earlier mark. The misspelling of this word, with the unusual double ‘X’ at the end, is rather striking. The earlier mark is distinctive to a normal degree.

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings. Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T‑104/01, Fifties, EU:T:2002:262, § 49). The misspelling of the word ‘BOX’ is rather striking and is very similar in both signs. It is likely to be recalled by the relevant public as a distinctive and memorable feature of both signs. However, the main difference between the signs is confined to the non-distinctive/weak additional element of the contested sign ‘TOP’.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the English-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s international registration No 1 274 256. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods found to be at least similar to a low degree 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.

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

Vita VORONECKAITE

Cindy BAREL

Vít MAHELKA

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.