LEDSUN | Decision 2741158

Date Published: Sep 25, 2017

OPPOSITION No B 2 741 158

Slawomir Trzesniowski LEDsON, Obroncow Tobruku str. 31/140, 01494 Warsaw, Poland (opponent), represented by Uexküll & Stolberg Partnerschaft von Patent- und Rechtsanwälten mbB, Beselerstr. 4, 22607 Hamburg, Germany (professional representative)

a g a i n s t

Ningbo Haifu Exports Co. Ltd., Room 901, No 777, Rili Road, Yinzhou District, Ningbo, People's Republic of China (applicant), represented by Meiting Zhu, Crottorfer Str. 27, 51109 Köln, Germany (professional representative)

On 18/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 741 158 is upheld for all the contested goods.

2.        European Union trade mark application No 15 131 402 is rejected in its entirety.

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

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 131 402. The opposition is based on, inter alia, European Union trade mark registration No 13 464 797. 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.

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 13 464 797.

1. The goods

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

Class 6: Common metals and their alloys; Metal building materials; Metal profiles; Aluminium profiles; Transportable buildings of metal; Materials of metal for railway tracks; Non-electric cables and wires of common metal; Ironmongery, small items of metal hardware; Pipes and tubes of metal; Safes; Goods of common metal for mounting lighting apparatus; Ores.

Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; mechanisms for coin-operated apparatus; Cash registers, calculating machines, data processing equipment and computers; Fire-extinguishing apparatus.

Class 11: Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; Light-emitting diodes [LED] lighting apparatus; all aforementioned goods with the exception of lights for motorised vehicles.

The contested goods are the following:

Class 9: Ballasts for halogen lamps; Electrified rails for mounting spot lights; Bus bars; Wall lights (fittings for -) [switches]; Commutators; Electromagnetic switches; Piezoelectric switches; Optical switches; Switches, electric; Switches, electric; Skeleton switches [electronic]; Electric switch plates; Electric switch plates; Electrical switch assemblies; Tactile switches [electric]; Reed contact switches; Electronic touch sensitive switches; Computer network switches; Electronic motion sensitive switches; Electric breakers [switches]; Solenoid valves [electromagnetic switches]; Temperature control apparatus [electric switches]; Decorative switch plate covers; Skeleton switches [electric]; Domestic switches [electric]; Temperature control apparatus [electric switches] for vehicles; Plugs, sockets and other contacts [electric connections]; Covers for electric outlets; Moveable sockets; Electrical sockets; Socket outlets (Electric -); Electrical power outlet boxes; Electrical outlet plates; Travel adaptors for electric plugs; Shaver sockets (Electric -); Power strips with movable sockets; Electrical power extension cords; Electrical power extension cords; Electrical power extension cords; Electrical power extension cords; Grids for batteries; Fluorescent lamp ballasts; Ballasts for gas discharge lamps; Ballasts for halogen lights; Fluorescent lamp ballast for electric lights; Ballasts for electrical lighting fittings; Electronic ballasts for operating discharge lamps; Electronic regulators; Controllers (regulators); Stage lighting controls; Thermal controls [thermostats]; Measuring, detecting and monitoring instruments, indicators and controllers; Cable harnesses; Cable modems; Cable connectors; Cable detectors; Cable locators; Cable television transmitters; Threaded electrical cable connectors; Receivers for receiving cable television; Cable television converters; Electronic cables; Electrical cabling; Electric cords; USB cables; Mobile High-Definition Link (MHL) cables; Cable channels (Electric -); Electric terminal lugs; Cable covers [conduits]; Wire connectors [electricity]; Connecting electrical cables; Insulated electrical cables; Insulated electrical cables; Thermocouple cables; Cable junctions for electric cables; Cable splices for electric cables; USB cables for cellphones; Insulated cable for electrical installations; Male connectors for electrical cables; Data transmission cables; Connections for electric cables; Conductor bars; Cables for optical signal transmission; Cables for electrical signal transmission; Electric cables for the transmission of sounds and images; Plugboards; Distribution amplifiers; Electrical distributors; Distribution boards [electricity]; Distribution boards [electricity]; Distribution boards [electricity]; Panels for the distribution of electricity; Panels for the distribution of electricity; Distribution boxes [electricity]; Junction boxes for electric wires; Distribution boxes [electricity]; Terminals [electricity]; Terminal blocks (Electrical connecting -); Battery starters; Starter electromagnets; Starters for electric lights; Ultrasonic sensors; Electric sensors; Electric sensors; Photoelectric sensors; Electronic sensors; Optical fibre sensors; Piezoelectric sensors; Synchro sensors; Optical sensors; Biochip sensors; Electro-optical sensors; Dummy sensors; Sensors for measuring speed; Sensors for engines; Sensors for determining velocity; On-off sensors; Sensors for use in the control of engines; Sensors for use with machine tools; Shutter sensors; Sensors for determining position; Sensors for use in the control of engines; Automatic solar tracking sensors; Electronical sensors for measuring solar radiation; Electric door bells; Electric door bells; Automatic timers for use with beverage makers; Buzzers; Electronic buzzers; Electronic buzzers; Circuit breakers; Switch clocks; Extension sockets.

Class 11: Halogen lamps; Halogen lamps for incorporation into electric cookers; Fluorescent lamps; Fluorescent lamps; Fluorescent lamps with low ultra-violet light output; Fluorescent lighting tubes; Fluorescent lamp tubes; Flourescent electric light bulbs; Pendant fluorescent lighting fixtures; Fluorescent lighting apparatus; Battery powered fluorescent emergency lighting units; Indoor fluorescent lighting fixtures; Indoor fluorescent electrical lighting fittings; Lightbulbs; Lightbulbs; Lightbulbs; Dashboard lamp bulbs; Headlamp bulbs; Lightbulbs; Direction indicator bulbs; Downlights; Roof lights [lamps]; Downlights; Roadlights; Standard lamps; Vehicle headlamps; Headlamps for use on motor cycles; Headlamps for use on cycles; Spot lights for use on vehicles; Vehicle headlamps; Automobile headlamps; Spot lights for household illumination; Garden lighting; Wall lights; Wall lights; Sconces [electric light fixtures]; Spotlights; Temperature sensitive switches [thermostatic valves] for central heating radiators; Wall lights (fittings for -) [other than switches]; Table lamps; Table lamp (Lampshades for -); Emergency lighting; Emergency lighting; Emergency lighting installations; Emergency lighting installations; Battery powered incandescent emergency lighting units; Electric night lights; Christmas lights [other than candles]; Igniters; Igniters; Ignition apparatus for gas fires; Linear air diffusers; Security lighting incorporating an infra-red activated sensor; Security lighting incorporating a heat activated sensor; Security lighting incorporating a movement activated sensor; Energy efficient lamps; work lamps; Surface-lighting lamps; Platform lighting.

Class 20: Cable ties; Hinges, not of metal for the fastening of electrical cables; Door bells, not of metal, non-electric.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services are not regarded as being similar or dissimilar to each other on the ground that they appear in the same or different classes under the Nice Classification.

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.

Contested goods in Class 9

Ballasts are devices required by electric-discharge light sources to regulate voltage and current to the lamp. The contested ballasts for halogen lamps; fluorescent lamp ballasts; ballasts for gas discharge lamps; ballasts for halogen lights; fluorescent lamp ballast for electric lights; ballasts for electrical lighting fittings and electronic ballasts for operating discharge lamps are thus included in the opponent’s broad categories of apparatus and instruments for regulating or controlling electricity. Therefore, they are identical.

The contested electrified rails for mounting spot lights and commutators are included in, or overlap with, the opponent’s broad category of apparatus and instruments for controlling electricity. Therefore, they are identical.

Bus bars are metallic strips or bars that conduct electricity within a switchboard, distribution board, substation, battery bank or other electrical apparatus. The contested bus bars are thus included in the opponent’s broad category of apparatus and instruments for conducting electricity. Therefore, they are identical.

The contested wall lights (fittings for -) [switches]; electromagnetic switches; piezoelectric switches; switches, electric; switches, electric; skeleton switches [electronic]; electric switch plates; electric switch plates; electrical switch assemblies; tactile switches [electric]; reed contact switches; electronic touch sensitive switches; electronic motion sensitive switches; electric breakers [switches]; solenoid valves [electromagnetic switches]; temperature control apparatus [electric switches]; skeleton switches [electric]; domestic switches [electric] and temperature control apparatus [electric switches] for vehicles are included in the opponent’s broad category of apparatus and instruments for switching or controlling electricity. Therefore, they are identical.

The contested optical switches are included in the opponent’s broad category of optical apparatus and instruments. Therefore, they are identical.

A computer network switch is a device that electrically and logically connects devices together on a computer network to receive, process and forward data to the destination device. Data processing equipment includes computers and any peripherals used in the processing of data. The contested computer network switches are thus included in the opponent’s broad category of data processing equipment. Therefore, they are identical.

Apparatus are a collection of instruments, machines, tools, parts, or other equipment used for a particular purpose and an instrument is, inter alia, an object, device, or apparatus designed or used for a particular purpose or task. Therefore, the opponent’s apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity are a broad category of goods which, in at least one or the other of the sub-categories listed, include, or overlap with, all the contested plugs, sockets and other contacts [electric connections]; moveable sockets; electrical sockets; socket outlets (electric -); electrical power outlet boxes; electrical outlet plates; travel adaptors for electric plugs; shaver sockets (electric -); power strips with movable sockets; electrical power extension cords; electrical power extension cords; electrical power extension cords; electrical power extension cords; grids for batteries; electronic regulators; controllers (regulators); stage lighting controls; cable harnesses; threaded electrical cable connectors; cable connectors; electronic cables; electrical cabling; electric cords; wire connectors [electricity]; connecting electrical cables; insulated electrical cables; insulated electrical cables; cable junctions for electric cables; cable splices for electric cables; insulated cable for electrical installations; male connectors for electrical cables; connections for electric cables; conductor bars; plugboards; distribution amplifiers; electrical distributors; distribution boards [electricity]; distribution boards [electricity]; distribution boards [electricity]; panels for the distribution of electricity; panels for the distribution of electricity; distribution boxes [electricity]; junction boxes for electric wires; distribution boxes [electricity]; terminals [electricity]; terminal blocks (electrical connecting -); battery starters; starter electromagnets; starters for electric lights; electric terminal lugs; cable covers [conduits]; cable channels (electric -); circuit breakers and extension sockets. Therefore, they are identical.

The contested measuring and detecting instruments, indicators and controllers; thermal controls [thermostats]; automatic timers for use with beverage makers; switch clocks; thermocouple cables; electric sensors; electric sensors; electronic sensors; ultrasonic sensors; photoelectric sensors; optical fibre sensors; piezoelectric sensors; synchro sensors; optical sensors; biochip sensors; electro-optical sensors; dummy sensors; sensors for measuring speed; sensors for engines; sensors for determining velocity; on-off sensors; sensors for use in the control of engines; sensors for use with machine tools; shutter sensors; sensors for determining position; sensors for use in the control of engines; automatic solar tracking sensors; electronical sensors for measuring solar radiation; cable detectors and cable locators are included in, or overlap with, the opponent’s broad category of measuring apparatus and instruments. Therefore, they are identical. 

The contested monitoring instruments, indicators and controllers are included in, or overlap with, the opponent’s broad category of checking (supervision) apparatus and instruments. Therefore, they are identical. 

The contested electric door bells; electric door bells; buzzers; electronic buzzers and electronic buzzers are included in the opponent’s broad category of signalling apparatus and instruments. Therefore, they are identical.

The contested cable modems; cable television transmitters; receivers for receiving cable television; cable television converters; USB cables; mobile high-definition link (MHL) cables; USB cables for cellphones; data transmission cables; cables for optical signal transmission; cables for electrical signal transmission and electric cables for the transmission of sounds and images are included in, or overlap with, the opponent’s broad category of apparatus for recording, transmission or reproduction of sound or images. Therefore, they are identical.

The opponent’s broad category of apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity includes switch plates and electric outlets. Therefore, the contested decorative switch plate covers and covers for electric outlets are at least similar to the opponent’s goods as they can be complementary, share the same distribution channels, target the same relevant public and can be produced by the same undertakings.

Contested goods in Class 11

The contested halogen lamps; halogen lamps for incorporation into electric cookers; fluorescent lamps; fluorescent lamps; fluorescent lamps with low ultra-violet light output; fluorescent lighting tubes; fluorescent lamp tubes; flourescent electric light bulbs; pendant fluorescent lighting fixtures; fluorescent lighting apparatus; battery powered fluorescent emergency lighting units; indoor fluorescent lighting fixtures; indoor fluorescent electrical lighting fittings; lightbulbs; lightbulbs; lightbulbs; headlamp bulbs; lightbulbs; direction indicator bulbs; downlights; roof lights [lamps]; downlights; roadlights; standard lamps; vehicle headlamps; headlamps for use on cycles; spot lights for use on vehicles; vehicle headlamps; spot lights for household illumination; garden lighting; wall lights; wall lights; sconces [electric light fixtures]; spotlights; table lamps; emergency lighting; emergency lighting; emergency lighting installations; emergency lighting installations; battery powered incandescent emergency lighting units; electric night lights; Christmas lights [other than candles];

security lighting incorporating an infra-red activated sensor; security lighting incorporating a heat activated sensor; security lighting incorporating a movement activated sensor; energy efficient lamps; work lamps; surface-lighting lamps and platform lighting are included in, or overlap with, the opponent’s broad category of apparatus for lighting with the exception of lights for motorised vehicles. Therefore, they are identical.

The contested linear air diffusers are included in, or overlap with, the opponent’s broad category of apparatus for ventilating. Therefore, they are identical.

The contested temperature sensitive switches [thermostatic valves] for central heating radiators; igniters; igniters; ignition apparatus for gas fires are similar to the opponent’s broad category of apparatus for heating. These goods can be complementary, share the same distribution channels, target the same relevant public and be produced by the same undertakings. 

The contested wall lights (fittings for -) [other than switches] and table lamp (lampshades for -) are similar to the opponent’s broad category of apparatus for lighting with the exception of lights for motorised vehicles. These goods can be complementary, share the same distribution channels, target the same relevant public and be produced by the same undertakings.

The contested dashboard lamp bulbs; headlamps for use on motor cycles and automobile headlamps are similar to the opponent’s broad categories of apparatus and instruments for conducting, regulating or controlling electricity in Class 9 which all cover, inter alia, light-emitting diodes (LEDs). The contested dashboard lamp bulbs, headlamps for use on motor cycles and automobile headlamps include such goods made with LEDs. Therefore, the opponent’s goods may be an essential component of the above-mentioned contested goods and they can be complementary to each other. As a result, these goods can also be produced by the same undertakings, target the same relevant public and share the same distribution channels (see decision of 14/10/2015 in joined cases R 3125/2014-2 and R 2786/2014-2 – ‘X-RACER LITHIUM ION (fig.) / X-RACER’, § 30-39).

Contested goods in Class 20

The contested cable ties and hinges, not of metal for the fastening of electrical cables are similar to the opponent’s broad category of apparatus and instruments for conducting electricity in Class 9 which includes, inter alia, electric cables. These goods can target the same relevant public, namely electricians who install, maintain and repair electrical devices. Furthermore, they can share the same distribution channels, e.g. electrical shops and can be produced by the same undertakings.

The contested door bells, not of metal, non-electric are highly similar to the opponent’s broad category of signalling apparatus and instruments in Class 9 which includes, inter alia, electric door bells. These goods have the same purpose and can have a similar nature. They also share the same distribution channels, target the same relevant public and can be produced by the same undertakings. Furthermore, they can be in competition.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical or similar to varying degrees are directed at the public at large and at professionals. Some of the goods at issue are specialised goods that may demand specific professional knowledge or expertise. Therefore, depending on the type and intended purpose of goods such as the measuring instruments and goods related to conducting, switching, transforming, accumulating, regulating or controlling electricity, the degree of attention of relevant public may vary from average to high, in particular as the impact on safety of goods covered by a trade mark may result in an increase in the relevant consumer’s degree of attention (22/03/2011, T-486/07, CA, EU:T:2011:104, § 41).

3. The signs

LEDsON	LEDSUN
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 earlier mark is the word mark ‘LEDsON’. In the case of word marks, it is the word as such that is protected and not its written form. As a result, it is irrelevant whether a word mark is depicted in lower or upper case letters, or in a combination thereof. Therefore, it is the word ‘LEDSON’ as such that should be assessed and not its written form ‘LEDsON’ as registered.

The contested sign is the word mark ‘LEDSUN’.

In relation to some of the goods concerned, the element ‘LED’ in both signs will be perceived as having a meaning for the relevant part of the public throughout the European Union as explained further below. However, the elements ‘SON’ and ‘SUN’ respectively will not be perceived as having any meaning for part of the non-English-speaking public in the relevant territory, such as in Bulgaria, Poland and Lithuania.

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). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

In view of this, the Opposition Division finds it appropriate to focus the comparison of the signs on the part of the public in non-English-speaking Member States, such as Bulgaria, Poland and Lithuania.

The relevant consumers normally perceive a mark as a whole and do not proceed to analyse its various details. However, the fact remains that, when perceiving a verbal sign, consumers will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T 256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T 146/06, Aturion, EU:T:2008:33, § 58).

In this respect, although the signs ‘LEDSON’ and ‘LEDSUN’ do not have any meaning as a whole for the part of the public under analysis, in relation to some of the relevant goods, such as lighting apparatus, ‘LED’ will be perceived as referring to the English acronym for ‘Light Emitting Diode’ and will be associated with this meaning throughout the European Union, since it is the common way to refer to this lighting technology (20/06/2013, R 1964/2012-5, LEDWAY/LEDWAVE). Therefore, in relation to such goods, the element ‘LED’ will be considered descriptive and, therefore, non-distinctive for the relevant public in Bulgaria, Poland and Lithuania. However, in relation to some of the goods concerned in relation to which the acronym ‘LED’ would have no obvious or direct connection, such as apparatus for recording, transmission or reproduction of sound or images, cable modems and non-electric door bells, the signs are not likely to be broken down into various elements but will rather be perceived as consisting of fanciful and distinctive words without any meaning at all.

Visually, the signs coincide in the letters ‘LEDS*N’ and are only differentiated by their respective different penultimate letter ‘O’ and ‘U’, which are, however, visually rather similar.

Therefore, irrespective of whether the element ‘LED’ is perceived as descriptive or not, the signs are overall visually similar to an above average degree.

Aurally, irrespective of the different pronunciation rules in the different territories under analysis, the pronunciation of the signs coincides in the syllable ‛LED’, present identically in both signs and the pronunciation of the respective second syllables ‛SON’ and ‛SUN’ is similar.

Therefore, irrespective of whether the element ‘LED’ is perceived as descriptive or not, the signs are also overall aurally similar to an above average degree.

Conceptually, irrespective of whether the element ‘LED’ is perceived as having a meaning as explained above, the signs are not conceptually similar since they will either be perceived as consisting of fully fanciful words without any meaning or otherwise as sharing a descriptive and non-distinctive concept that will not lead to a relevant conceptual similarity between them.

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

4. 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.

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territories under analysis. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a non-distinctive element in the mark in relation to some of the relevant goods as stated above in section c) of this decision.

5. 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).

Account should also be taken of the fact that average consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26).

Even consumers who pay a high degree of attention need to rely on their imperfect recollection of trade marks (21/11/2013, T-443/12, ancotel, EU:T:2013:605, §  54).

In the present case, the goods concerned are identical or similar to varying degrees and the degree of attention of the relevant public may vary from average to high. The earlier mark has a normal degree of distinctiveness as a whole in relation to all the goods concerned and irrespective of whether the element ‘LED’ in both signs is perceived as descriptive in relation to some of the relevant goods, the signs are visually and aurally similar to an above average degree and there is no conceptual difference between the signs that could reduce the very similar overall impression they produce. Therefore, taking into account the principles of interdependence and imperfect recollection, which will also apply to consumers who pay a high degree of attention, as outlined above, in view of the overall similarity between the signs, the Opposition Division finds that there is a likelihood of confusion on the part of the public in Bulgaria, Poland and Lithuania in relation to all the contested goods, even those which have been found to be only similar and also in relation to the goods for which the level of attention of the relevant public may be high. 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.

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 13 464 797 in relation to all the contested goods. It follows that the contested trade mark must be rejected in its entirety.

As the earlier European Union trade mark registration No 13 464 797 leads to the success of the opposition and to the rejection of the contested trade mark for all the goods against which the opposition was directed, there is no need to examine the other earlier right invoked by the opponent (16/09/2004, T-342/02, Moser Grupo Media, S.L., EU:T:2004:268).

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

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

Anna BAKALARZ

Sam GYLLING

Boyana NAYDENOVA

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.