e-CF plus | Decision 2712811

Date Published: Sep 25, 2017

OPPOSITION No B 2 712 811

E-Plus Mobilfunk GmbH, E-Plus-Str. 1, 40472 Düsseldorf, Germany (opponent), represented by Lorenz Seidler Gossel Rechtsanwälte Patentanwälte Partnerschaft mbB, Widenmayerstr. 23, 80538 München, Germany (professional representative).

a g a i n s t

Associazione Italiana per l'informatica ed il calcolo automatico, Piazzale Rodolfo Morandi 2, 20121 Milano, Italy (applicant), represented by Alberto Savi, Viale Corsica, 2, 20137 Milano, Italy (professional representative).

On 27/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 712 811 is upheld for all the contested goods and services, namely: 

Class 9:         Computer software [programmes].

Class 38:         Telecommunications.

Class 42:         Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software; certification services (quality control); Certification.

2.        European Union trade mark application No 15 085 129 is rejected for all the contested goods and services. It may proceed for the remaining goods and services.

3.        The applicant bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 15 085 129, namely against all the goods and services in Classes 9, 38 and 42. The opposition is based on German trade mark registration No 302 015 061 444 and European Union trade mark registration No 1 132 299. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s European Union trade mark registration No 1 132 299.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered 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 only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’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 opposition is based.

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

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08, & T-357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. The signs

Earlier trade mark	Contested sign

The relevant territory is European Union.

The earlier European Union trade mark is figurative mark in green, which consists of the lowercase letter ‘E’ followed by a dot and the lowercase letters ‘PLUS’.

The contested sign consists of the lowercase letter ‘E’ followed by a hyphen and the uppercase letters ‘CF’ and the italic lowercase letters PLUS’, against a dark green rectangular background. The dark green rectangular background is purely decorative and, therefore, non-distinctive.

The marks have in common the word ‘PLUS’, which will convey an indefinite positive message, evoking the idea of advantage, something that is increasing (information extracted from Collins dictionary at https://www.collinsdictionary.com/dictionary/english/plus and from Duden Online at duden.de at http://www.duden.de/suchen/dudenonline/plus) or that they have something additional to other products (see decision of 02/03/2017, R 1736/2016-4, SMARTPLUS, § 19., have a somewhat laudatory connotation and its distinctiveness is deemed to be below average.

With respect to the letter ‘E’ in the marks, the Office does not find it very distinctive, as it is a generally used as a prefix indicating that an action can be conducted electronically, through the internet or the web. Therefore, the distinctiveness of this element is considered weak in relation to the goods and services in Classes 9, 38 and 42, which consist of goods or services conducted electronically or through the internet.

On the other hand, the element ‘CF’ in the contested sign is meaningless and therefore it is of normal distinctiveness.

Visually, the signs are similar to the extent that they coincide in the first lowercase letter ‘E’ and the word ‘PLUS’. Also, in both signs, the colour green is present. However, they differ in the letter ‘CF’ in the contested sign and the figurative elements (dot, hyphen and the green background) and different green colours, the slightly different stylisation of the word and the white colour. Taking into account the level of distinctiveness of the components, the sign are visually similar to a low degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘E’ and the sound of the letters ‛PLUS’ present identically in both signs, and to that extent the signs are aurally similar. The pronunciation differs in the sound of the letters ‛CF’ of the contested mark which have no counterparts in the earlier mark. Taking into account the level of distinctiveness of the coinciding elements, the sign are aurally similar to a low degree.

Conceptually, neither of the signs has a meaning per se for the public in the relevant territory. However, the element ‘PLUS’ will be understood by the relevant public as advantage, expresses that something, to a certain amount, is increasing or that they have something additional to other products. The letter ‘E’ is likely to be perceived as referring to electronic. Since the signs will be associated with a similar meaning and taking into account the level of distinctiveness of these elements, the signs are conceptually similar to a low degree.

Taking into account the abovementioned coincidences, the signs under comparison are similar to a certain degree. 

2. Reputation of the earlier trade mark

According to the opponent, the earlier trade mark has a reputation in Germany.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case the contested trade mark was filed on 08/02/2016. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in Germany prior to that date. The evidence must also show that the reputation was acquired for the services for which the opponent has claimed reputation, namely:

Class 38:        Telecommunication.

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 14/10/2016 and 17/10/2016 the opponent submitted, in particular, the following evidence:

• Annexes 1 - 2 : Screenshot and extract from Wikipedia entry for E-Plus which states that E-plus had more than 25 million subscribers according to E-plus group annual report in 2013 and that E-Plus is the third largest mobile operator in Germany.
• Annex 3: 9 pages of advertising in German and showing the trade mark in question. (Only 2 pages are dated (01/2002).
• Annexes 4, 6, 20: Screenshots in 2010 from the Internet Wayback Machine (web.archive.org) showing pages with entries for .
• Annex 5: Screenshot dated 06/08/2014 showing the website eplus.de and the sign  
• Annex 7: Article from the online magazine ‘Spiegel online’ in German showing a picture of an E-Plus SIM card dated 26/03/2008.
• Annex 8: Two screenshots from the website myvideo.de showing television advisement uploaded on 12/03/2008.
• Annex 9: Article from faz.net dated 11/06/2012 in German.
• Annex 10: Article from fde.engaget.com dated 03/06/2012 in German and its translation with the title ‘KPN and Telefonica are thinking about a merger of O2 and E-Plus’ which stated that both would be market leader in Germany with 41,7 million customers ahead of 36,5 (Vodafone) and 35,1 (Telecom).
• Annex 11: Article from telegeography.com dated 26/10/2012 with the title ‘Telefonica eyes German network sharing deal’ and makes references to E-Plus in the text.
• Annex 12: Article in German from ‘Frankfurter Rundschau’ dated 03/10/2013 showing a picture of an E-Plus SIM card (with English translation of relevant parts in the opponent’s observation).
• Annex 13: Article in German from the German weekly ‘Zeit Online’ dated 26/08/2013 (with English translation of relevant parts in the opponent’s observation).
• Annex 14: Extract (unknown source) in German with the title ‘Telekom. Fusion von E-Plus and O2’ dated 02/10/2013 (with English translation of relevant parts in the opponent’s observation).
• Annex 15: Article from the German weekly ‘Der Tagesspiegel’, dated 06/08/213, in German and article from ‘Spiegel Online’, dated 23/07/2013, in German. Both articles make reference to E-Plus (with English translation of relevant parts in the opponent’s memory).
• Annexes 16, 17, 31, 32: Copies of several invoices issued within the period 2008 to 2015. The signs  or  or appear at the top right hand corner. Also in the text, the trade mark E-Plus appears next to some of the items listed in the invoices. The addresses are redacted but show the city or town of the customers and they all refer to Germany. The total range from EUR 10 to EUR 480.
• Annexes 18,19: Price lists and special conditions valid for contracts as of 15/05/2012 for ‘E-Plus’ mobile telecommunications services.
• Annex 21: extract from Wikipedia showing a car bearing the sign in white lettering (16/04/2008).
• Annex 22: screenshot from the website flickr.com showing a photograph taken on 02/03/2007 which shows a promotional campaign in which the trade mark , in white lettering and against a green background, appears.
• Annex 23: screenshot from bigcitywall.com showing a photograph dated 05/09/2010 of shop front showing the sign in green lettering.
• Annex 24: screenshot from the website flickr.com showing a photograph taken on 10/03/2005 which shows a large version of the trade mark , in green lettering, attached to a building.
• Annex 25: screenshot dated 08/2017 from the opponent’s website eplus-gruppe.de.
• Annex 26: a printout of the About us section of the website eplus-gruppe.de dated 01/10/2012.
• Annex 27: printout from the opponent’s website.
• Annex 28: copy of press releases issued by the opponent dated in 2012 showing the sign E-Plus Gruppe, all documents are in German.
• Annex 29: Undated brochure showing  or , in German.
• Annexes 33,34: opponent’s documents (written dates, in 2010, 2011, 2012, 2013, 2014) where appear mobile phone and at the top left, the signs   are depicted, document in German. Copy of newsletters in German.

• Annex 36: annual report 2010 of KPN is stated that the E-Plus is the third largest mobile telecommunication network operator in Germany
• Annex 37: document related to headquartered of the E-Plus Group in Dusseldorf.
• Annex 38: Printout from the opponent’s website explaining the current situation regarding the division of services between services offered under the earlier right and other rights such as BASE, SIMYO and E-Plus.
• Annex 39: facts and figures, in English, for the business divisions of the E-Plus Group in 2013 and 2014, total of revenues 2003-2013. Press information in German.
• Annex 40: copy of an article in German from the German newspaper ‘Handelsblatt’.
• Annex 41: Screenshot from the internet Wayback machine (web.archive.org) showing the Wikipedia page dated 22/06/2012 entry for E-Plus which states that E-Plus had 19 million subscribers.
• Annex 42: Screenshot from the Internet Wayback machine (web.archive.org) showing information from the opponent’s website stating that in the first quarter of 2013 E-Plus had a service revenue from mobile telecommunications of EUR 714 million, 23.9 million subscribers and approximately 4 000 full-time employees.
• Annex 43: Extract of a study entitled European Telecoms Matrix Q2 2011 from Bank of America Merrill Lynch dated 06/06/2011, which states that in 2010 E-Plus held a 19% market share in German mobile subscribers market (making it the third largest) and that the opponent’s turnover was EUR 3.24 billion.
• Annex 44: Summary of the results taken from a study entitled Market Tracking Table- Germany (Euros, Sport currency Q1 2012) dated 31/05/2012 states that E-Plus market share in relation to the total connections was at 15.8 % in 2000 and rose to 20.4% in Q1 2012 (data for each quarter from 2000 to 2011 and the first quart in 2012).
• Annex 45: Copy of District Court of Hamburg judgement 29/05/2006 Ref. 406 O 318/05), In German.
• Annex 46: Copy of Opposition Division Decision in case B 612 426 dated 27/07/2005, in German.
• Annex 52: An extract from awareness data of O2 and competitors, including E-Plus, in March 2015.
• Annex 53: Copy of Decision on opposition B 2 182 486 dated 11/02/2016, in English, attesting to enhanced level of distinctiveness of the trade mark 4 609 061

On the basis of the above the Opposition Division concludes that the earlier trade mark has a reputation in Germany, for all the services for which the opponent has claimed reputation, namely telecommunication.

Some evidence is filed only in German and these have not been taken into account. However, a sufficient amount of the evidence has partial translations or is reasonably self-evident (or includes images). The rest of evidence is acceptable as far as being in the language of proceedings is concerned (for example extracts of a study).

The abovementioned evidence indicates that the earlier trade mark has been used for a substantial period of time. The sales figures and marketing efforts suggest that the trade mark has a consolidated position in the market. Under these circumstances, the Opposition Division finds that, taken as a whole, the evidence indicates that the earlier trade mark enjoys a certain degree of recognition among the relevant public, which leads to the conclusion that the earlier trade mark enjoys some degree of reputation. Whether the degree of recognition is sufficient for Article 8(5) EUTMR to be applicable depends on other factors relevant under Article 8(5) EUTMR such as, for example, the degree of similarity between the signs, the inherent characteristics of the earlier trade mark, the type of goods and services in question, the relevant consumers, etc.

Most of the evidence shows the use as following  and .The omission of colour or the slightly change of colour do not alter the distinctive character of the earlier mark since the verbal element remains the prominent element. The opposition division notes that the additional symbol + is a depiction of the element PLUS which serves to reinforce the word and that is perceived as minor difference that does not alter the distinctive character of the earlier mark. As a result, the evidence, also the articles from independent sources, such as different newspaper articles and the Euroepan Telecoms Matrix (Annex 43) show that the earlier mark has a strong reputation in Germany for telecommunications.

3. The ‘link’ between the signs

As seen above, the earlier mark is reputed and the signs are similar to some extent. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C-408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C-252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 42):

∙        the degree of similarity between the signs;

∙        the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

∙        the strength of the earlier mark’s reputation;

∙        the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

∙        the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that when encountering the contested mark the relevant consumers will be likely to associate it with the earlier sign, that is to say, establish a mental ‘link’ between the signs. However, although a ‘link’ between the signs is a necessary condition for further assessing whether detriment or unfair advantage are likely, the existence of such a link is not sufficient, in itself, for a finding that there may be one of the forms of damage referred to in Article 8(5) EUTMR (26/09/2012, T-301/09, Citigate, EU:T:2012:473, § 96).

The visual, aural and conceptual similarities between the earlier mark and the contested sign have been described above.

The earlier mark has a reputation for telecommunication services. In the view of the Opposition Division, there is a connection between telecommunication services and the applicant’s goods in Class 9, namely Computer software [programmes]. Consumers use computer programmes for telecommunication purposes. Any software that provides the ability to perform telecommunication activities or operations can be considered telecommunications control software. Therefore, they are closely connected.

This also extends to the applicant’s design and development of computer hardware and software in Class 42, which are clearly connected with telecommunication services. The contested services refer to computer programming services that are directly or potentially intended for enabling telecommunication activities, in terms of allowing access to data networks or connection between various devices or serving as interface between the telecommunication equipment and the users. The consumer may assume that the same companies provide all these services or the companies are under the control of the same entity.  

The contested services in Class 38 are identical to the reputed services of the earlier mark.

The contested scientific and technological services and research and design relating thereto; industrial analysis and research services in Class 42 promote the research and development of technologies and resources in the scientific, technological and/or industrial fields. These activities are aimed at the acquisition of new knowledge with the objective of using it for developing new products, processes or services or for bringing about a significant improvement in existing products, processes or services.

The contested certification services (quality control); certification) include a wide range of services that are all covered by, or are all closely related to, the broad categories of scientific and technological services and research and design relating thereto and include also certification of computer programming or telecommunication services. Therefore, these services have some relation to the reputed services.

Firstly, the similarity of the signs plays a crucial role in the existence or absence of a link. As has already been determined, the sign are similar due to the common elements E and PLUS. They differ in the element CF in the contested sign and the depiction of the signs. However, even though the common elements are weak distinctive, the earlier mark has a strong reputation in Germany in telecommunication. Consequently, the distinctiveness of the earlier mark is enhanced and its distinctiveness is of above average.

The contested services have some relation to telecommunication services and are either identical or similar or are at least not so dissimilar that the later mark is unlikely to the bring the earlier mark to the mind of the relevant public. The consumer may assume, due to the reputation of the earlier mark, that the contested services are linked to the reputed services. Taking into account all the relevant factors of the case at hand, the Opposition Division concludes that the gap between them is not so large and consequently there exists a possibility that the contested mark, when being encountered in relation to the contested goods and services for which protection is sought, will bring to the mind of the relevant consumers the earlier mark, which has a reputation in Germany.

4. Risk of injury

Use of the contested mark will fall under Article 8(5) EUTMR when any of the following situations arise:

∙        it takes unfair advantage of the distinctive character or the repute of the earlier mark;

∙        it is detrimental to the repute of the earlier mark;

∙        it is detrimental to the distinctive character of the earlier mark.

Although detriment or unfair advantage may be only potential in opposition proceedings, a mere possibility is not sufficient for Article 8(5) EUTMR to be applicable. While the proprietor of the earlier mark is not required to demonstrate actual and present harm to its mark, it must ‘adduce prima facie evidence of a future risk, which is not hypothetical, of unfair advantage or detriment’ (06/07/2012, T-60/10, Royal Shakespeare, EU:T:2012:348, § 53).

It follows that the opponent must establish that detriment or unfair advantage is probable, in the sense that it is foreseeable in the ordinary course of events. For that purpose, the opponent should file evidence, or at least put forward a coherent line of argument demonstrating what the detriment or unfair advantage would consist of and how it would occur, that could lead to the prima facie conclusion that such an event is indeed likely in the ordinary course of events.

The opponent claims the following:

• Use of the contested application will inevitably result in an economic benefit for the applicant without due cause since the application mark takes unfair advantage of the earlier mark’s distinctiveness and repute in Germany.

• Due to the high similarity of signs, use of the contested mark results in an image transfer. This image transfer results in an unjustified economic benefit for the applicant, because it does not have to make marketing investments.
• Due to the similarity between the marks at issue the contested mark appears to be a derivative of the widely known opposition mark. In particular this will cause damage though erosion of the reputation of the opposition mark. In particular, it is highly that the proprietor of the contested mark will create another picture of his trademark and pursue another marketing strategy than the opponent.

• Given the degree of similarity between the signs it is obvious that the opponent mark’s ability to identify the opponent’s service will be weakened by the use of the contested sign. Also, since the opposed sign is already intensively used in the course of trade, it is highly likely that a damage to the opposition mark’s distinctive character is about to take place.

In other words, the opponent claims that use of the contested trade mark would take unfair advantage of the distinctive character or the repute of the earlier trade mark, and be detrimental to the distinctive character and repute of the earlier trade mark.

Before examining the opponent’s claim, it is appropriate to recall that the opposition is directed against the following goods and services which have been found above that the public will establish a link between the signs: Computer software [programmes] (Class 9); Class 38:        Telecommunications; Class 42: Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software; certification services (quality control); Certification.

As seen above, the earlier trade mark was found to have a reputation for:

Class 38:        Telecommunications.

Unfair advantage (free-riding)

Unfair advantage in the context of Article 8(5) EUTMR covers cases where there is clear exploitation and ‘free-riding on the coat-tails’ of a famous mark or an attempt to trade upon its reputation. In other words, there is a risk that the image of the mark with a reputation or the characteristics which it projects are transferred to the goods and services covered by the contested trade mark, with the result that the marketing of those goods and services is made easier by their association with the earlier mark with a reputation (06/07/2012, T-60/10, Royal Shakespeare, EU:T:2012:348, § 48, and 22/03/2007, T-215/03, Vips, EU:T:2007:93, § 40).

The opponent bases its claim on the following.

∙        Use of the contested application will inevitably result in an economic benefit for the applicant without due cause since the application mark takes unfair advantage of the earlier mark’s distinctiveness and repute in Germany.

∙        Due to the high similarity of signs, use of the contested mark results in an image transfer. This image transfer results in an unjustified economic benefit for the applicant, because it does not have to make marketing investments.

In determine the likelihoods that unfair advantage will occur, there are several factors to consider. Those factors include the degree of similarity between the conflicting marks; the nature of the goods and services for which these marks are registered, including the degree of closeness or dissimilarity between those goods and services, and the relevant section of the public; the strength of the earlier mark’s reputation; the degree of the earlier mark’s distinctive character; and the existence of the likelihood of confusion (27/11/2008, C252/07, ‘Intel Corporation’, § 40).

Taking into account the strong reputation of the earlier mark in Germany, the Opposition Division consider that there is sufficient similarity between the signs for the consumers to form an association between them in respect of the services which could be linked to the opponent’s reputed services, as stated above.

The earlier mark has the image of big telecommunication company with several years of experience with millions of clients. This image could be transferred to the applicant by registering the contested mark. The contested mark could take unfair advantage of the opponent’ investment in its trade mark and its reputation. The opponent has invested money in developing and building the reputation of its earlier mark. Also, the opponent proved that it is known by a large proportion of the public in Germany and the applicant would benefit from the attraction and prestige of the earlier mark.

On the basis of the above, the Opposition Division concludes that the contested trade mark is likely to take unfair advantage of the distinctive character or the repute of the earlier trade mark.

Other types of injury

The opponent also argues that use of the contested trade mark would be detrimental to the repute of the earlier trade mark.

As seen above, the existence of a risk of injury is an essential condition for Article 8(5) EUTMR to apply. The risk of injury may be of three different types. For an opposition to be well founded in this respect it is sufficient if only one of these types is found to exist. In the present case, as seen above, the Opposition Division has already concluded that the contested trade mark would take unfair advantage of the distinctive character or repute of the earlier trade mark. It follows that there is no need to examine whether other types also apply.

Conclusion 

Given that the opposition is entirely successful under Article 8(5) EUTMR it is not necessary to examine the remaining ground and the other earlier right on which the opposition was based.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition 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 Opposition Division will decide a different apportionment of costs.

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

According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Francesca DRAGOSTIN

Julie GOUTARD

Martin EBERL

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.