DXSEAT | Decision 0011232 | Trademarkers LLC

DXSEAT | Decision 0011232

Date Published: Sep 25, 2017

CANCELLATION No 11 232 C (INVALIDITY)

Dxracer Technology Wuxi Co., Ltd., Room 404, No. 19 of Zhihui Road, Huishan Economic Development Zone, Wuxi City, Jiangsu Province, People’s Republic of China (applicant), represented by ARCADE & ASOCIADOS, C/ Isabel Colbrand, 6 - 5ª planta, 28050 Madrid, Spain (professional representative)

a g a i n s t

Andrzej Krzysztof Wnękowicz, Łukowica 255, 34606 Łukowica, Poland, and Miłosz Leśniak, Wielogłowy 171, 33311 Wielogłowy, Poland (EUTM proprietors, represented by JWP Rzecznicy Patentowi Dorota Rzążewska SP. J., ul. Żelazna 28/30, 00-833 Warsaw, Poland (professional representative).

On 14/07/2017, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is partially upheld.

2. European Union trade mark No 13 460 142 is declared invalid for some of the contested goods and services, namely:

Class 20: Office furniture; chairs; armchairs; desks; tables; armchairs of metal; furniture fittings, not of metal; cushions; bolsters; headrests; spare parts for office seats, chairs and furniture; beds; computer furniture.

Class 35: Retailing and wholesaling, for others, of the following goods: furniture, including office and computer furniture, via telesales, mail order sale, telecommunications media or websites.

Class 42: Design of office furniture; consultancy and information relating to work ergonomics and ergonomics in the following industries: furniture, design of office furniture, in particular armchairs and seats, provided online from computer databases or the internet.

3. The European Union trade mark remains registered for all the remaining services, namely:

Class 35: Advertising services, business administration, marketing and marketing planning; office functions.

4. Each party bears its own costs.

REASONS

On 23/07/2015, the applicant filed an application for a declaration of invalidity against European Union trade mark No 13 460 142 ‘DXSEAT’ (‘the contested EUTM’) (word mark), filed on 14/11/2014 and registered on 28/04/2015.

The request is directed against all the goods and services covered by the contested EUTM, namely:

Class 35: Advertising services, business administration, marketing and marketing planning; office functions; retailing and wholesaling, for others, of the following goods: furniture, including office and computer furniture, via telesales, mail order sale, telecommunications media or websites.

The applicant invoked Article 53(1)(a) EUTMR in conjunction with Article 8(1)(a)(b) EUTMR and Article 8(2)(c) EUTMR on the basis of the following earlier rights:

European Union trade mark registration No 11 426 996 (‘the earlier EUTM’), filed on 14/12/2012 and registered on 15/09/2014, for the figurative sign hereunder:

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The request is based on all the goods covered by the earlier EUTM in Classes 12 and 20, for which, according to the applicant, the earlier EUTM enjoys reputation pursuant to Article 53(1)(a) EUTMR in connection with Article 8(5) EUTMR.

Non-registered well-known mark in Belgium, Czech Republic, Denmark, Germany, Italy and Poland, within the meaning of Article 6bis of the Paris Convention in respect of the following goods:

Class 12: Vehicles seats.

Class 20: Furniture; chairs; seats.

The applicant further claims that the contested EUTM was filed in bad faith (Article 52(1)(b) EUTMR).

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant’s first submission

The applicant argues as follows:

The marks in conflict are highly similar overall to the extent that they coincide in their respective initial letters ‘DX’, which is also the most distinctive element in both signs. The additional words “RACER” and “SEAT” have descriptive connotations in connection with some of the relevant goods and therefore should not be taken into account in the comparison of the signs. Furthermore, the presence of these words reinforces the likelihood of association between the marks, since they create in the mind of the consumer the idea that the contested EUTM is only a new version of the earlier mark.

The contested EUTM “DXSEAT” clearly resembles the structure of the applicant’s mark with the evident purpose to create confusion in the market. Phonetically, the pronunciation of the marks coincides in the element ‘DX’. From the conceptual point of view, the signs in conflict should be considered identical since they coincide in the word “DX”.

The contested goods in Class 20 are identical and similar to the earlier goods in Classes 12 and 20. Moreover, the services in Classes 35 and 42 of the contested mark, which are all related to furniture and chairs, are closely linked to the applicant’s goods. It follows that these goods and services are similar since they have the same purpose and coincide in the same commercial sector.

Moreover, the applicant’s mark “DXRACER” has a reputation in the field of furniture of all kinds, especially in the manufacture of chairs, where it has achieved notoriety due to the quality and promotion of its products. Relating to the EU territory, the sign “DXRACER” is a well-known mark in Italy, Belgium Denmark, Poland, Czech Republic and Germany in connection with chairs for offices, vehicles and homes.

In addition, reference is made to the fact that one of the proprietors of the contested EUTM, Mr. Andrzej Wnękowicz, is also a representative of the Polish company ‘DXRacer Sp z.o.o.’. Since 2010 Mr. Andrzej Wnękowicz has been maintaining a business relationship with the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd and Mr Wu Qing (former owners of the earlier EUTM) as a distributor of the mark “DXRACER” in the EU territory. Therefore, at the time of filing the contested EUTM, he was fully aware of the existence of the applicant’s sign and business activities. It follows that the contested EUTM constitutes a blatant attempt to exploit the reputation of the earlier mark.

In support of its observations, the applicant filed the following evidence:

Evidence 1: Copy of the Chinese company certificate of the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd. (previous owner of the earlier EUTM), indicating Mr Wu Qing as a legal representative. The document is accompanied by a translation into English.

Evidence 2: Copy of the registration certificate of the earlier EUTM, originally filed by Mr Wu Qing.

Evidence 3: Copy of registration certificates of figurative marks ‘DXRACER’ registered in the name of the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd. in Indonesia, Laos, Malaysia, Myanmar, Vietnam and Switzerland.

Evidence 4: Extract from the website www.dxracer.com showing a list of countries in North America and Europe.

Evidence 5: Undated pictures displaying chairs bearing the figurative mark ‘DXRACER’ and taken during gaming events (G-League and Halo Championship Series).

Evidence 6: Copy of 4 invoices (indicating to the sale of 1 771 chairs in Denmark, Germany, Italy and the US 5) and 7 shipment orders (indicating the shipment of 2 180 chairs in Belgium, Czech Republic, Germany and Poland) dated between 21/02/2014 and 31/02/2015.

Evidence 7: Copy of a letter signed by Mr Wu Qing on 01/04/2015 indicating that the Polish company DXRacer Sp z.o.o., which is represented by Mr. Wnękowicz, has been “an authorised representative of the “DxRacer” brand in European countries from 1st December 2010”.

Evidence 8: Extracts from the website www.dxracer.pl displaying the applicant’s mark and making reference to the company DXRacer Sp z.o.o.

Evidence 9: Copy of e-mail correspondence dated in the period 2012-2015 relating to the several order requests sent to applicant’s employee. The applicant makes particular reference to some e-mails signed by “Andrew” of DXRacer Polska.

The EUTM proprietors’ response

The EUTM proprietors contest the applicant’s claims pointing out the following:

Contrary to the applicant’s opinion, the contested services in Class 35 are not similar to the goods in Classes 12 and 20 covered by the earlier mark. They have a different nature, method of use, target different end-users and are not in competition with each other.

Visually, the marks coincide in only two letters, while they differ in the remaining five and four letters of the earlier and contested mark, respectively. The signs in conflict are relatively short and these differences will be perceived by the relevant public. The length of the signs at issue is also different. Furthermore, concerning the earlier mark, consumers will focus their attention on the letter “A”, which is represented in the middle of the sign in a particular typeface that seems to visually split the mark into two parts, “DXR” and “ACER”. Phonetically, the different pronunciation of the words ‘SEAT’ and ‘RACER’ is sufficient to avoid any similarity between the marks. In addition, these words refer to different meanings and, therefore, the marks are conceptually dissimilar.

The word ‘RACER’ of the earlier EUTM is not descriptive of the goods in Classes 12 and 20, while the element ‘SEAT’ of the contested EUTM is not negligible in the overall impression produced by the EUTM proprietor’s sign. Therefore, such words cannot be excluded in the comparison of the signs.

Concerning the applicant’s claim under Article 8(2)(c) EUTMR and Article 8(5) EUTMR, it is irrelevant that “DXRACER” mark is registered and used in Asia. The evidence filed by the applicant fails to show that the earlier mark is well-known or renown within the EU territory. Further, the applicant’s documentation does not contain any dates and cannot prove any sales of the relevant goods. Even if some documents might refer to the sale of some goods, the amount of goods sold is too small to prove any recognition of the sign in the relevant territories.

In respect of the claim of bad faith, although Mr Wu Qing and DxRacer Sp. Z o.o. are former partners, there is no reason to conclude that the contested EUTM was filed in bad faith. The evidence shows no connection with Mr Wnękowicz. In addition, no bad faith can be found when the conflicting signs are dissimilar. In this case, the marks at issue are similar only to the extent that they share a combination of letters that is no original or highly distinctive.

In support of its observations, the EUTM proprietor filed the following document:

Attachment 1:Extract from the EUIPO’s database showing a list of 20 EU trade marks containing the sequence ‘DX’, such as ‘CDX’, ‘SDX’, ‘SDX V’, ‘FDX’, ‘TDX’, ‘4DX’, ‘HDX’, ‘ROCO RDX’ etc. This list also includes the conflicting signs.

The applicant’s reply

The applicant reiterates its previous arguments and sums up as follows:

All the products and services covered by the marks at issue are addressed to the same business sector and it is therefore undeniable that they all coincide in their purpose, end-consumers and commercial origin.

The mark “DXRACER” has been marketed in the EU territory since 2012 through direct distributors or through sales on-line. The earlier mark is well-known by EU consumers, retailers and manufacturers active in the furniture industry and in the sector of accessories and components for automobiles.

Relating to the EUTM proprietor’s bad faith, as already stated, Mr. Andrzej Wnękowicz, is also a representative of the Polish company DXRacer Sp z.o.o., which has been an business partner of the former owners of the earlier EUTM since 2010. The company DXRacer Sp z.o.o. also filed the domain name www.dxracer.net on its name. Following a dispute before the WIPO, the domain name was transferred to the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd., as it was concluded that it was filed in bad faith.

In support of its observations, the applicant filed the following evidence:

Evidence 10: A copy of the decision No D2015-2334 of 08/03/2016 issued by the Administrative Panel of WIPO following a complaint filed by Wu Qing, Jiangyin Dexin Auto Parts (Chair) Co., Ltd. (complainant) against DXRacer Sp. Z o.o., Anna Wolak (respondent) in connection with the disputed domain name ‘dxracer.net’.

After reporting that “the respondent was an authorized representative of the DXRACER brand from December 1, 2010 till at least April 1, 2015, and the business relationship was terminated by the complainant”, the WIPO’s Panel found that “the registration and use of the disputed domain name constitute bad faith”.

Evidence from 11 to 28: Copies of six invoices sent between 12/01/2016 to 26/01/2016 to clients in Czech Republic, Denmark, Germany, Poland, Sweden and Russia regarding the sale of 1 075 items. In the invoices’ header it is display the earlier mark, while the products are identified through product-codes which mostly coincide with those appearing in webpages extracted from on-line shops showing, inter alia, that the applicant’s goods are also in sale in Bulgaria, Finland, Italy, Netherland, Portugal, Romania, Slovakia, Spain and the UK.

The EUTM proprietors’ rejoinder

In their final submission, the EUTM proprietors reiterate their previous observations on the overall dissimilarity between the signs and the goods and services in conflict. They further point out that:

None of the applicant’s evidence shows that the earlier mark has been marketed since 2012. Moreover, there is no document indicating that the mark was well-known or renown within the EU territory at the time of the filing of the contested EUTM (14/11/2014).

As far as the claim of bad faith is concerned, it is noted that an applicant for invalidity may not enlarge the scope of the application by claiming any additional grounds during the course of the proceedings. In its previous observations the applicant maintained that the present application was based on Articled 53(1)(a) EUTMR and on Article 6 bis of the Paris Convention. Moreover, the bad faith’s claim was not indication in the application form.

Concerning the decision of the WIPO’s Administrative Panel, it is noted that such case concerns legal issues which have no relation with the present case.

Likelihood of confusion - Article 53(1)(a) EUTMR in conjunction with 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 goods and services

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 on which the application is based are the following:

Class 12: Vehicle seats; car chairs; seat cushions for vehicles; shaped or fitted seat covers for vehicles; child restraint seats; interior trim for vehicles; automotive interior trim; upholstery for vehicles.

Class 20: Furniture; non-metallic parts of furniture; office furniture; seats; seating units; seats of metal; office seats (chairs); desking; desks; tables; furniture fittings, not of metal; casters; cushions; bolsters; locks, not of metal, for vehicles; cushions for seats (chairs); back-support cushions for chairs; cushions for chair seats; seat cushions; ergonomic cushions; shaped pads for chairs; flat cushions (pads) for seats; foot rests; footrests used when working at the computer; parts of chairs, including: armrests, arms, hydraulic cylinders, control mechanisms, multi-limbed bases.

The contested goods and services are the following:

The expression including and in particular – which are used in the earlier mark’s list of goods in Class 20 as well as in the EUTM proprietor’s list of services in Classes 35 and 42 - indicate that the specific goods and services listed after such expressions are only examples of items included in the broader category parts of chairs of the earlier mark and furniture of the contested EUTM. This means that such expressions introduce non-exhaustive lists of examples and, therefore, protection is not restricted to those specific terms (on the use of including and in particular, see a reference in judgment of 09/04/2003, T-224/01, Nu-tride, EU:T:2003:107).

Contested goods in Class 20

The contested office furniture, desks, tables, furniture fittings, not of metal, cushions and bolsters are identically included in the earlier mark’s list of goods in Class 20.

The contested chairs, armchairs, armchairs of metal, beds and computer furniture are all included in the wide category furniture of the earlier EUTM. Thus, there is identity between these goods.

As to the remaining contested, headrests, spare parts for office seats, chairs and furniture, such goods are included in and overlap with the broad category parts of chairs of the applicant’s mark. These goods are, therefore, identical.

Contested services in Class 35

According to the case law, retail services concerning the sale of particular goods are similar to a low degree to those particular goods (05/05/2015, T-715/13, Castello, EU:T:2015:256, § 33; 05/10/2011, T-421/10, Rosalia de Castro, EU:T:2011:565, § 33). This principle also applies to different forms of actual sale of goods, such as wholesale services, internet shopping, catalogue or mail order services, etc.

In the case at hand, the object of the retail and wholesale services, for others,(…) via telesales, mail order sale, telecommunications media or websites of the contested EUTM, namely furniture, is identically protected by the earlier mark. Although the nature, purpose and method of use of the conflicting goods and services are not the same, the fact that the contested retail services and the earlier goods are offered at the same (retail) outlets is a relevant factor for assessing the similarity between those goods and services (15/02/2011, T 213/09, Yorma’s, EU:T:2011:37, § 31; 11/07/2007, T-443/05, Piranam, EU:T:2007:219, § 37; 22/03/2007, T-364/05, Pam Pluvial, EU:T:2007:96, § 95). Furthermore, the goods and services at hand are complementary to each other and target the same public. Consequently, the contested retailing and wholesaling, for others, of the following goods: furniture, including office and computer furniture, via telesales, mail order sale, telecommunications media or websites are considered to be similar to a low degree to the earlier furniture in Class 20.

Nonetheless, the same considerations do not apply in respect with the remaining contested services advertising services, business administration, marketing and marketing planning; office functions. These services are all dissimilar to the earlier goods in Classes 12 and 20.

The core business of advertising services, marketing and marketing planning consist of providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position in the market and acquiring competitive advantage through publicity. These services are provided by advertising companies, which study their client’s needs, provide all the necessary information and advice for the marketing of their products and services, and create a personalised strategy regarding the advertising of their goods and services through newspapers, websites, videos, the internet, etc.

Business administration services are intended to help companies with the performance of business operations and essentially consist of organising people and resources efficiently so as to direct activities toward common goals and objectives. They include activities such as personnel recruitment, payroll preparation, drawing up account statements and tax preparation, and are usually are rendered by inter alia employment agencies, auditors and outsourcing companies.

Office functions are the internal day-to-day operations of an organisation including the administration and the support services in the ‘back office’. They mainly cover activities that assist in the working of a commercial enterprise. They include activities typical of secretarial services, such as shorthand and typing, compilation of information into computer databases, invoicing, administrative processing of purchase orders, as well as support services, such as the rental of office machines and equipment.

These services share no link with their earlier goods: their nature is fundamentally different; they involve different activities, different professionals, different objectives and different purposes.

Contested services in Class 42

There is a low degree of similarity between the earlier furniture in Class 20 and all the contested services in Class 42, since they share the same relevant public and might be produced or rendered by the same undertakings through the same channels. Indeed, although these conflicting goods and service have a different nature, companies producing furniture usually also provide the design of customised products as well as consultancy and information services to consumers looking for buying furniture and parts thereof.

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 and services found to be identical and similar to a low degree are directed at the public at large and at professionals, such as dealers and traders active in the furniture industry. The degree of attention will vary from average to high depending, for instance, on the type of furniture, since some products are not purchased on a daily basis and can be expensive.

The signs

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DXSEAT

Earlier EUTM

Contested trade mark

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, bearing in mind 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 EUTM can be relied on in an invalidity proceedings against any registration of a subsequent EUTM that would adversely affect its protection, even if only in relation to the perception of consumers in part of the EU (18/09/2008, C-514/06 P, Armafoam, EU:C:2008:511, § 57). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to invalidate the contested mark. In the present case, the Cancellation Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the relevant public.

The earlier mark is a figurative sign consisting of the single word element ‘DXRACER’ written in a slightly stylized typeface. The contested EUTM is the word ‘DXSEAT’.

The EUTM proprietors point out that the relevant public’s attention will be visually attracted by the typeface of the letter ‘A’ in the earlier sign, due to its size and typeface. Furthermore, according to the EUTM proprietors, such stylization creates a particular visual effect dividing the earlier mark into two parts, “DXR” and “ACER”.

It is true that the shape of the letter ‘A’ in the earlier sign is a bit stretched vertically and appears in a slightly bigger size than the other letters of the mark. However, the Cancellation Division finds that this stylization is not particularly eye-catching and will be perceived as ornamental by the relevant public. It is unlikely that consumers will recognise the letter ‘A’ as the most dominant element of the earlier mark.

Although under certain circumstances a sign can be broken down visually into various parts through the use, for instance, of a special character, hyphen or other punctuation mark, dissecting a mark in more elements is not appropriate unless the relevant public will clearly perceive the components in question as separate elements. This may happen, for instance, when a word element can be identified as such in an isolated manner because of its clear meaning. Indeed, a consumer perceiving a sign will break it down into elements which, for it, suggest a concrete meaning or which resemble words known to it (06/10/2004, T-356/02, Vitakraft, EU:T:2004:292, § 51, 13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57).

The alleged dissection suggested by the EUTM proprietor is improbable considering that both the elements to which the applicant refers to, namely “DXR” and “ACER”, do not convey any clear, immediate and unambiguous meaning to the relevant public.

That said, the Cancellation Division finds that the English speaking part of the relevant public will perceive the earlier signs and the contested mark as ‘DX’ conjoined to the terms racer and seat respectively. With particular reference to the element seat of the contested EUTM, this word conveys a descriptive connotation in respect of the goods and services in Classes 20, 35 and 42, which have been found to be identical and similar (to a low degree) to the earlier goods, as they are all related to furniture (including seats). As to the term racer, although it semantically contains some link with the earlier goods in Class 12, it bears no connection with the earlier goods furniture and it is therefore distinctive in connection with such goods.

It follows from the above that the sequence of letters ‘DX’ is the most distinctive element of the contested mark in respect of the relevant goods and services in Classes 20, 35 and 42. As a consequence, the impact of the descriptive element ‘SEAT’ is limited on the consumer’s perception and, hence, its inclusion in the contested mark has little distinguishing effect when comparing the signs. However, the word ‘RACER’ has no direct link with the goods related to furniture, and is therefore as distinctive as the ‘DX’ component.

In light of the above, visually, although the marks differ in their second parts ‘RACER’ in the earlier mark and ‘SEAT’ in the contested EUTM, they coincide in the sequence of letters ‘DX’ that is the initial element of the earlier mark, which is normally the part that attracts more the public’s attention (16/03/2005, T-112/03, Flexi Air, EU:T:2005:102, §§ 64-65), and the most distinctive element of the contested mark. As mentioned above, the script of the earlier EUTM is not a feature that the public will necessarily retain.

Although the common element of the signs is short, it occurs at the beginning of the signs and, in the contested mark, has a stronger distinctive character when compared to the other descriptive verbal elements. Then, contrary to the EUTM proprietors’ opinion, the signs have approximately an equal length, as the earlier mark contains only one more letter than the contested EUTM. Therefore, the marks are considered visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘DX’, which are present at the beginnings of the marks. The pronunciation differs in the sound of the conjoined words contained in the marks, ‘RACER’ in the earlier mark and ‘SEAT’ in the contested sign. Bearing in mind that the word seat of the contested EUTM is non-distinctive, the signs are considered aurally similar, at least, to a low degree on account of the coinciding first element, ‘DX’.

Conceptually, the relevant public will not take ‘DX’ to mean anything and therefore there is no conceptual connection between the marks concerning the element they have in common. The words ‘RACER’ and ‘SEAT’ mean different things in English (see above), so for those who understand the meaning of these words there is a conceptual difference between the marks. However, the semantic dissimilarity between the marks arises from the presence of the descriptive term seat of the contested EUTM and, therefore, is not a strong differentiating factor in the assessment of the overall similarity of the signs.

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

Distinctiveness of the earlier mark

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

According to the applicant, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the applicant to prove this claim does not have to be assessed in respect with the claim of likelihood of confusion (see below in ‘Global assessment’).

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se.

The EUTM proprietors argue that the sequence of letters ‘DX’ is weakly distinctive as it is commonly used in various trade mark registrations (Attachment 1).

The document submitted by the EUTM proprietors refers to 20 EU trade marks containing the letters ‘DX’. Some of these registrations are held by the same companies and, moreover, contain additional graphic and verbal elements which, in some cases, exclude an overall similarity with the signs at hand. Even if some of these signs might be considered similar to the earlier mark, it is not the mere coexistence on the trade mark register but the actual use and peaceful coexistence in the market of a high number of marks having a common component that may be able to demonstrate the reduced distinctive character of this component (08/03/2013, T-498/10, David Mayer, EU:T:2013:117, § 77; 02/10/2013, T-285/12, Boomerang, EU:T:2013:520, § 55 and the case-law cited therein).

Therefore, the EUTM proprietors’ claim must be set aside.

In the present case, despite the existence of a possible association between the element ‘RACER’ and the earlier goods in Class 12, neither the elements ‘DX’ or ‘RACER’ has a link with goods related to furniture. The mark ‘DXRACER’ as a whole has no meaning for any of these goods from the perspective of the public in the relevant territory. Therefore, its distinctiveness must be seen as normal.

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 mark on the market, the association which can be made with the registered mark, 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, Sabèl, EU:C:1997:528, § 22).

The goods and services under comparison are partly identical, partly similar to a low degree and partly dissimilar. The earlier mark enjoys average distinctive character which affords it a normal scope of protection. The signs are similar on account of the letters ‘DX’ and differ in their respective second parts, which will be recognised by the English speaking public in the words ‘RACER’ in the earlier mark and ‘SEAT’ in the contested sign.

It is acknowledged that these additional words in the marks will not go unnoticed by the relevant public. Nevertheless, according to settled case law, two marks 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 (02/11/2003, T-286/02, Kiap Mou, EU:T:2003:311; 15/02/2005, T-169/02, Negra modelo, EU:T:2005:46; 16/03/2005, T-112/03, Flexi Air, EU:T:2005:102; 08/03/2005, T-32/03, Jello Schuhpark, EU:T:2005:82; 06/10/2004, T-356/02, Vitakraft, EU:T:2004:292; 23/10/2002, T-104/01, Fifties, EU:T:2002:262; 04/05/2005, T-22/04, Westlife, EU:T:2005:160), and this element that the marks have in common retains an independent distinctive role in another composite mark (06/10/2005, C-120/04, Thomson Life, EU:C:2005:594, § 30).

In the present case, it is of a particular relevance that the common element of the marks, ‘DX’, is included at the beginning of the marks, which is the part that first catches the attention of the consumers. Both signs replicate the same structure consisting of the combination of the letters ‘DX’ followed by English terms relating to some of the goods and services protected by the marks. The graphic differences given by the font of the earlier mark are secondary. The conceptual dissimilarity between the marks is not a strong differentiating factor, since it arises from an element of the contested EUTM which the public will perceive as being ancillary to the main indicator of origin ‘DX’.

Article 53(1)(a) EUTMR in conjunction with article 8(1)(b) EUTMR provides that an EUTM shall be declared invalid if, because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services 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; the likelihood of confusion includes the likelihood of association with the earlier trade mark (emphasis added).

In the Cancellation Division’s view, despite the higher degree of attention that the relevant public may display for some of the goods and services at issue, the differences between the signs are not sufficient to dispel the likelihood that the relevant public may perceive them as variants of each other used by the same or economically linked companies to market specific ranges of goods and services.

Considering all the above, there is a likelihood of confusion, including a likelihood of association, on the part of the English-speaking part of the public. 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 trade mark.

This finding is true even for the services that are lowly similar to the earlier goods, since the impact of the differences between the signs is not sufficient to overcome the similarity between them. Indeed, the similarity between the signs, due to their initial elements, ‘DX’, outweighs the low degree of similarity between some of the goods and services, considering that the common element, ‘DX’, has normal distinctiveness, while the differing element ‘SEAT’ of the contested EUTM is descriptive and the signs as whole display an equivalent structure.

Therefore, the request for a declaration of invalidity is well-founded on the basis of the applicant’s earlier EUTM as far as the goods and services at issue have been found to be identical and similar (to a low degree). It follows from the aforesaid that the contested EUTM must be invalidated for the following goods and services:

Class 35: Retailing and wholesaling, for others, of the following goods: furniture, including office and computer furniture, via telesales, mail order sale, telecommunications media or websites.

No likelihood of confusion within the meaning of Article 53(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR can arise where the goods and services are not at least similar to some degree. Therefore, the request for invalidity must be rejected for the contested goods and services found to be dissimilar to those protected by the earlier mark, namely:

Class 35: Advertising services, business administration, marketing and marketing planning; office functions.

Since the cancellation application is partially successful on the basis of the inherent distinctiveness of the earlier mark, there is no need to assess the enhanced degree of distinctiveness of the earlier mark due to its extensive use and reputation as claimed by the applicant even for identical and similar goods and services. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

Likewise, there is no need to assess the claimed enhanced degree of distinctiveness of the earlier mark for dissimilar goods, as the similarity of goods and services is a sine qua non for there to be likelihood of confusion. The result would be the same even if the earlier mark enjoyed an enhanced degree of distinctiveness.

The application for invalidity must also fail insofar as it is based on grounds under Article 8(1)(a) EUTMR in conjunction with Article 53(1)(a) EUTMR and directed against the remaining services because the signs and the goods and services in conflict are obviously not identical.

Therefore, the Cancellation Division will continue with the examination of the remaining grounds in respect of these services.

Well known mark - Article 8(2)(c) in conjunction with Article 8(1)(b) EUTMR

The applicant has also based its request on the non-registered mark ‘DXRACER’ (figurative sign), which, according to the applicant, is well-known in Belgium, Czech Republic, Denmark, Germany, Italy and Poland within the meaning of Article 6bis of the Paris Convention in respect of the following goods:

Class 12: Vehicles seats.

Class 20: Furniture; chairs; seats.

Article 53(1)(a) EUTMR in conjunction with Article 8(2)(c) EUTMR refers to Article 6bis of the Paris Convention. The purpose of the provision of Article 6bis, introduced for the first time in the Convention in 1925, was to prevent the registration and use of a trade mark liable to create confusion with another mark already well known in the country of such registration, although the latter well-known mark was not, or not yet, protected in that country by registration.

As regards the EUTMR, the purpose was to avoid a legal gap, as Article 8(5) EUTMR protects only registered EUTMs. Without Article 8(2)(c) EUTMR, reputed non-registered marks would have remained without protection (apart from that of Article 8(4) EUTMR). To avoid this legal gap, the EUTMR laid down the protection of well-known marks within the sense of Article 6bis of the Paris Convention, as this article was drawn up mainly to grant protection to non-registered marks with a well-known character.

In the context of Article 8(2)(c) EUTMR, the requirements for applying Article 6bis of the Paris Convention and Article 8(1)(b) EUTMR are the same, although the terminology used is different. Both provisions require similarity between the goods or services and similar or identical signs (Article 6bis uses the term ‘reproduction’, which is equivalent to identity, and ‘imitation’, which refers to similarity). Both articles also require a likelihood of confusion (‘liable to create confusion’ is the wording used in Article 6bis).

In the present case, the applicant claims that its mark is well-known for goods in Classes 12 and 20 that are identical to those covered by the earlier EUTM. These goods have already been found to be dissimilar to the contested advertising services, business administration, marketing and marketing planning; office functions in Class 35 under Article 8(1)(b) EUTMR. Given that the dissimilarity between the goods and services in conflict cannot be overcome by the alleged well-known character of the mark invoked by the applicant, insofar as the invalidity application is based on the well-known mark ‘DXRACER’ (figurative mark), the outcome cannot be different. Therefore, the cancellation request is not well founded under Article 53(1)(a) EUTMR in conjunction with Article 8(2)(c) EUTMR and must be rejected.

Reputation – Article 53(1)(a) EUTMR in conjunction with Article 8(5) EUTMR

According to Article 53(1)(a) EUTMR in conjunction with Article 8(5) EUTMR, upon cancellation action by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark shall be cancelled where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are applicable only when the following conditions are met.

The signs must be either identical or similar.

The applicant’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the application for invalidity is based.

Risk of injury to reputation: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

The above-mentioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the application for declaration of invalidity under Article 8(5) EUTMR (16/12/2010, T-345/08 & T-357/08, ‘Botocyl’, EU:T:2010:529, § 41).

Reputation of the earlier trade mark

Reputation implies a knowledge threshold which is only reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by it. The public amongst which the earlier trade mark must have acquired a reputation is that concerned by that trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public.

The contested EUTM was filed on 14/11/2014. Therefore, the applicant was required to prove that the trade mark on which the action is based had acquired reputation in the European Union prior to this date. Moreover, the applicant has to show that the reputation of the earlier mark still existed at the time of filing of the invalidity request, that is, on 23/07/2015.

The evidence must also show that the reputation was acquired for the goods for which the applicant has claimed reputation, namely all the goods covered by the mark in Classes 12 and 20.

In order to determine the mark’s level of reputation, all the relevant facts of the case must be taken into consideration, including, in particular, the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.

On 23/07/2015, the applicant submitted the following evidence:

Evidence 1: Copy of the Chinese company certificate of the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd. (previous owner of the earlier EUTM), indicating Mr Wu Qing as legal representative. The document is accompanied by a translation into English.

Evidence 2: Copy of the registration certificate of the earlier EUTM, originally filed by Mr Wu Qing.

Evidence 3: Copy of registration certificates of figurative marks ‘DXRACER’ registered in the name of the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd. in Indonesia, Laos, Malaysia, Myanmar, Vietnam and Switzerland.

Evidence 4: Extract from the website www.dxracer.com showing a list of countries in North America and Europe.

Evidence 5: Undated pictures displaying chairs bearing the figurative mark ‘DXRACER’ and taken during gaming events (G-League and Halo Championship Series).

Evidence 6: Copy of 4 invoices (indicating to the sale of 1 771 hairs in Denmark, Germany, Italy and the US) and 7 shipment orders (indicating shipment of 2 180 chairs in Belgium, Czech Republic, Germany and Poland) dated between 21/02/2014 and 31/02/2015.

On 02/09/2016, the applicant provided further documentation:

Evidence from 11 to 28: Copies of six invoices sent between 12/01/2016 to 26/01/2016 to clients in Czech Republic, Denmark, Germany, Poland, Sweden and Russia regarding the sale of 1 075 items. In the invoices’ header it is display the earlier mark, while the products are identified through product-codes which mostly coincide with those appearing in webpages extracted from on-line shops showing, inter alia, that the applicant’s goods are also in sale in Bulgaria, Finland, Italy, Netherland, Portugal, Romania, Slovakia, Spain and the UK.

Having examined the material listed above, the Cancellation Division finds that the evidence submitted by the applicant does not demonstrate that the earlier trade mark acquired a reputation for the relevant goods in the EU.

Although the applicant’s invoices (Evidence 6, 11 to 28) show that a number of seats bearing the earlier mark were shipped to several EU Member States (such as Belgium, Czech Republic, Denmark, Germany, Italy, Poland and Sweden) between 2014 and 2016 and prove a certain extent of use of the sign, they do not contain relevant indications on the degree of recognition of the trade mark among the relevant public.

As to the extracts from the applicant’s website (Evidence 4), the pictures taken during gaming events (Evidence 5) and the webpages from on-line shops (Evidence from 11 to 28), these documents might be suitable to demonstrate that promotional and commercial activities were carried out using the mark, but they are not proof that the mark acquired reputation among the EU relevant public. It is true that the extracts from the Internet show products bearing the earlier EUTM on sale, but they do not demonstrate to what extent the relevant public is aware of the earlier mark’s existence.

The excerpts from different official databases providing details of ‘DXRACER’ trade marks (Evidence 2 and 3) just prove the existence of different earlier registered rights in the name of applicant, but they are not sufficient, even in an overall assessment of the evidence, to prove the reputation of the earlier mark.

Taken as a whole, the applicant’s evidence shows some use of the earlier EUTM especially in connection with seats, but it does not suffice to demonstrate that the mark has reached reach the threshold of reputation. Under these circumstances, the Cancellation Division concludes that the applicant failed to prove that its trade mark has a reputation.

As seen above, it is a requirement for the invalidity action to be successful under Article 8(5) EUTMR that the earlier EUTM has a reputation. Since one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, the request for invalidity must be rejected in so far as it is based on Article 53(1)(a) EUTMR in conjunction with Article 8(5) EUTMR.

Bad faith - Article 52(1)(b) EUTMR

Preliminary remark

In their submissions of 20/01/2017, the EUTM proprietors point out that the applicant’s claim of bad faith is inadmissible because it was not indicated in the application form submitted on 23/07/2015 and, furthermore, because in the letter sent to the Office on 02/11/2015 the applicant itself made reference only to Article 53(1)(a) EUTMR and Article 6 bis of the Paris Convention as basis of the present application.

Although the applicant did not indicate Article 52(1)(b) EUTMR (bad faith) in the application form, and did not mention it in one of its communication to the Office, the Cancellation Division will also examine the applicant’s claim under bad faith. Indeed, the Office has to examine an invalidity request as a whole, i.e. taking account of the statement of grounds submitted by the applicant, without limiting itself to the application form (24/03/2011, T 419/09, AK 47, EU:T:2011:121, § 21-27). This is because the application form does not exclusively determine the scope of the application and all of the applicant’s arguments must be taken into consideration, provided that the other party and the Office can reasonably understand them, as is the case here, considering that the EUTM proprietors clearly rebutted the applicant’s claim.

Bearing in mind that in its submissions filed together with the application form on 23/07/2015, as well as in the observations of 02/09/2016, the applicant presented its arguments and evidence to support its claim of bad faith, it can be reasonably assumed that its intention was to invoke Article 52(1)(b) EUTMR. Thus, the applicant’s request will be further assessed in respect of this claim.

General principles

Article 52(1)(b) EUTMR provides that a European Union trade mark will be declared invalid where the applicant was acting in bad faith when it filed the application for the trade mark.

There is no precise legal definition of the term ‘bad faith’, which is open to various interpretations. Bad faith is a subjective state based on the applicant’s intentions when filing a European Union trade mark. As a general rule, intentions on their own are not subject to legal consequences. For a finding of bad faith there must be, first, some action by the EUTM proprietor which clearly reflects a dishonest intention and, second, an objective standard against which such action can be measured and subsequently qualified as constituting bad faith. There is bad faith when the conduct of the applicant for a European Union trade mark departs from accepted principles of ethical behaviour or honest commercial and business practices, which can be identified by assessing the objective facts of each case against the standards (Opinion of Advocate General Sharpston of 12/03/2009, C-529/07, Lindt Goldhase, EU:C:2009:361, § 60).).

Whether an EUTM proprietor acted in bad faith when filing a trade mark application must be the subject of an overall assessment, taking into account all the factors relevant to the particular case (11/06/2009, C-529/07, Lindt Goldhase, EU:C:2009:361, § 37).

The overall assessment of bad faith must bear in mind the general principle that the ownership of a European Union trade mark is acquired by registration and not by prior adoption by way of its actual use. This is particularly so when the invalidity applicant is claiming rights to a sign which is identical or similar to the contested EUTM, it is important to remember that Article 52(1)(b) EUTMR moderates the ‘first-to-file’ principle, according to which a sign may be registered as an EUTM only in so far as this is not precluded by an earlier mark with effect either in the European Union or in a Member State. Without prejudice to the possible application of Article 8(4) EUTMR, the mere use of a non-registered mark does not prevent an identical or similar mark from being registered as an EUTM for identical or similar goods or service (14/02/2012, T 33/11, Bigab, EU:T:2012:77, § 16-17 and 21/03/2012, T 227/09, FS, EU:T:2012:138, § 31-32).

As a general rule, good faith is presumed until the opposite is proven and the burden of proof in this respect rests exclusively on the invalidity applicant (13/12/2012, T 136/11, Pelikan, EU:T:2012:689, § 57).

Assessment of bad faith

In essence, the applicant argues that it is necessary, for the purposes of determining whether or not the EUTM proprietor was in bad faith, to consider the following factors:

the applicant and the company Jiangyin Dexin Auto Parts (Chair) Co., Ltd. (former owner of the earlier EUTM) are the owner of several earlier registered rights on a mark that is confusingly similar to the contested EUTM;

Mr Wnękowicz, one of the EUTM proprietors, is the representative of a Polish company that entered into a business relationship with Mr Wu Qing in 2010. At the moment of the filing of the contested EUTM, Mr Wu Qing was the owner of the earlier EUTM.

at the time of filing the contested mark, Mr Wnękowicz was aware of the existence of the applicant’s earlier rights on the sign and its intention was to exploit the reputation of the earlier mark.

The applicant filed the following documentation in order to back up its claim:

Evidence 7: Copy of a letter signed by Mr Wu Qing on 01/04/2015 indicating that the Polish company DXRacer Sp z.o.o., which is represented by Mr. Wnękowicz, has been “an authorised representative of the “DxRacer” brand in European countries from 1st December 2010”.

Evidence 8: Extracts from the website www.dxracer.pl displaying the applicant’s mark and making reference to the company DXRacer Sp z.o.o.

Evidence 9: Copy of e-mail correspondence dated in the period 2012-2015 relating to the several order request sent to applicant’s employee. The applicant makes particular reference to some e-mails signed by “Andrew” of DXRacer Polska.

Evidence 10: A copy of the decision No D2015-2334 of 08/03/2016 issued by the Arbitration and Mediation Center of WIPO following a complaint filed by Wu Qing, Jiangyin Dexin Auto Parts (Chair) Co., Ltd. (complainant) against DXRacer Sp. Z o.o., Anna Wolak (respondent) in connection with the disputed domain name ‘dxracer.net’.

The Cancellation Division considers that the facts and evidence filed are insufficient for a declaration of invalidity based on bad faith. In particular, the applicant’s evidence fails to prove that the EUTM proprietors, when filing the application for the contested EUTM, unfairly and intentionally infringed prior rights of the applicant.

As seen above in the assessment of likelihood of confusion, the applicant’s earlier EUTM has been found to be similar overall to the contested EUTM and that the conflicting marks cover goods and services which are identical or similar, even though only in part. However, the fact that two signs are similar, or even identical, does not establish bad faith on the part of a EUTM proprietor, where there are no other relevant factors (01/02/2012, T-291/09, Pollo Tropical chicken on the grill, EU:T:2012:39, § 90). In fact, the possible similarity, or even identity, between the marks does not automatically trigger a presumption of bad faith and, rather, constitutes a matter for relative grounds. Bad faith is an absolute ground for invalidity and consideration must first be given to the intentions of the EUTM proprietor at the time when it filed the application, as a subjective factor which must be determined by reference to the objective circumstances of the particular case.

According to the case law, there is bad faith when the proprietor of a EUTM intends through registration to lay its hands on the trade mark of a third party with whom it had contractual or pre-contractual relations or any kind of relationship where good faith applies and imposes on the EUTM proprietor the duty of fair play in relation to the legitimate interests and expectations of the other party (13/11/2007, R 336/2007-2 - ‘Claire Fisher/Claire Fisher’, § 24).

The applicant argues that Mr Andrzej Krzysztof Wnękowicz, one of the EUTM proprietors, is the representative of a Polish company (DXRacer Sp. Z o.o.) which had a distributor relationship with Mr Wu Qing, former owner of the earlier EUTM, in order to distribute goods under the sign DXRACER within the EU market.

The applicant’s arguments on the distributor relationship between the Polish company DXRacer Sp. Z o.o. and Mr Wu Qing are not disputed by the EUTM proprietors, who confirm that Mr Wu Qing and DXRacer Sp. Z o.o. were “business partners”. Moreover, extracts from the website www.dxracer.pl (Evidence 8) and from the e-mail correspondence (Evidence 9) clearly show that a commercial relationship relating to the distribution of goods bearing the mark ‘DXRACER’ indeed existed between the Polish company and the Chinese Jiangyin Dexin Auto Parts (Chair) Co., Ltd., legally represented by Mr Wu Qing and also former owner of the earlier EUTM.

In Decision No D2015-2334 of 08/03/2016 the Administrative Panel of WIPO acknowledged that DXRacer Sp. Z o.o. was an authorized representative of the ‘DXRACER’ mark from 01/12/2010 until, at least, 01/04/2015, and found that that the domain name ‘dxracer.net’ was registered and used in bad faith by DXRacer Sp. Z o.o (Evidence 10).

However, while the evidence suggests that at the time of filing the contested mark a duty of fair play towards the former owner of the earlier EUTM could have been expected on the part of DXRacer Sp. Z o.o., as being at that time the partner of Mr Wu Qing, the documentation on file provides no indication that the EUTM proprietors had any kind of relationship with Mr Wu Qing which imposed such a duty.

The applicant states that Mr Wnękowicz was a representative of DXRacer Sp. Z o.o., but this claim is not corroborated by any document. In particular, the only piece of evidence supporting this argumentation is a letter signed by Mr Wu Qing. The statement is however drawn up by a party that is involved in the present dispute and it has not been backed up by any other type of evidence originating from independent sources. Indeed, even if some of the emails (Evidence 9) exchanged between the employees of Jiangyin Dexin Auto Parts (Chair) Co., Ltd. and of DXRacer Sp. Z o.o. appear to be signed by a person called “Andrew”, it is not clear whether this name can be associated to Mr Wnękowicz.

The evidence on file contains indications of a previous business relationship between Mr Wu Qing (and his company Jiangyin Dexin Auto Parts (Chair) Co., Ltd.) and DXRacer Sp. Z o.o., but there is no clear link between the Polish company and Mr Wnękowicz. Thus, the Cancellation Division cannot establish a connection between the applicant and any of the EUTM proprietors on the basis of the partnership between Mr Wu Qing and DXRacer Sp. Z o.o.

The Cancellation Division cannot therefore uphold the applicant’s claims and cannot base its decision only on presumptions which are not supported by independent sources. As indicated previously, the onus is on the applicant to prove its claims and failure to do so means good faith is presumed.

In view of the above the Cancellation Division rejects as unfounded the applicant’s claim that the EUTM proprietors acted in bad faith when applying for its EUTM.

COSTS

According to Article 85(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

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

The Cancellation Division

Rhys MORGAN

Pierluigi M. VILLANI

Ioana MOISESCU

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

DXSEAT | Decision 0011232

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