PRIMAVITA | Decision 2654898

Date Published: Oct 1, 2017

OPPOSITION No B 2 654 898

Bolton Cile España, S.A., Calle Ombu, 3 - Torre Urbis, Planta 13, 28045 Madrid, España (opponent), represented by Barzano' & Zanardo Milano S.P.A., Via Borgonuovo, 10, 20121 Milano, Italy (professional representative)

a g a i n s t

Triscom Holding B.V., Raalterweg 36, 7451 KX Holten, The NeTherlands (applicant), represented by Marks & Us marcas y patentes,  Ibañez de Bilbao 26, 8º dcha, 48009 Bilbao (Vizcaya), España (professional representative).

On 01/06/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 654 898 is upheld for all the contested goods.

2.        European Union trade mark application No 14 732 391 is rejected in its entirety.

3.        The applicant bears the costs, fixed at EUR 650.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 14 732 391. The opposition is based on, inter alia, Spanish trade mark registration No nº 2 578 815. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

REPUTATION – ARTICLE 8(5) EUTMR

For reasons of procedural economy, the Opposition Division will first examine the opposition in relation to earlier Spanish trade mark nº 2 578 815, for which the opponent claimed repute in  Spain.

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 above mentioned 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

PRIMA	PRIMAVITA
Earlier trade mark	Contested sign

The relevant territory is Spain.

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 ‘PRIMA’. The contested sign is the wordmark ‘PRIMAVITA’

The word ‘PRIMA’ included in both signs is a Spanish term which refers, among other meanings, to ‘female cousin’, ‘bonus payment’ or ‘first’.

The verbal element ‘VITA’ in the contested sign does not have any meaning for the relevant public, however, it means life in Italian.

Both marks have no element that could be considered more distinctive or dominant (visually eye-catching) than other elements.

Visually, the signs are similar to the extent that they coincide in ‘PRIMA’. However, they differ in ‘VITA’.

Therefore, the signs are similar to an average degree.

Aurally, the pronunciation of the signs coincides in the syllables /pri-ma/ present identically in both signs, and to that extent the signs are aurally similar. The pronunciation differs in the syllable /vi-ta/ of the contested mark which have no counterpart in the earlier sign.

Therefore, the signs are similar to an average degree.

Conceptually, the element ‘PRIMA’ included in both signs will be associated with ‘cousin a child of your uncle or aunt bonus payment’or ‘first’. To that extent, the signs are conceptually similar. The element ‘VITA’ of the contested mark means life in Italian. The Opposition Division considers that the relevant public will understand the foreign word since it is very close to the equivalent word in the official language in the relevant territory, ‘VIDA’ in Spanish.

Therefore, the signs are similar to an average degree.

Taking into account the abovementioned visual, aural and conceptual coincidences, the signs under comparison are similar.

2. Reputation of the earlier trade mark

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

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 26/10/2015. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in Spain prior to that date. The evidence must also show that the reputation was acquired for the goods for which the opponent has claimed reputation, namely:

Class 29:        All kinds of canned food, meat, fish, poultry and game. Meat extracts, dried and cooked fruits and vegetables, jellies and jams, eggs, milk and milk products, edible oils and fats, salad dressings.

Class 30:        Sauces and condiments, coffee, tea, cocoa, sugar, rice, tapioca sago, artificial coffee, flour and preparations made from cereals, bread, biscuits, cakes, pastry and confectionery, edible ices, honey, treacle, yeast, baking-powder, salt, mustard, pepper, vinegar, ice.

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 26/08/2016 the opponent submitted the following evidence:

Enclosure 1: Copies, together with their relevant translations into English, of the extracts of the above Spanish and Portuguese trademarks are herewith attached

Enclosure 2: a “legend”, namely a translation from Spanish into English of the main words that will be found in almost all documents enclosed.

Enclosure 3: Catalogues of PRIMA products of the years 2011 – 2015 where the PRIMA sauces and condiments appear in the following pages:

A. 2011 catalogue: pages 3-10

B. 2012 catalogue: pages 3-10

C. 2013 catalogue: pages 3-10

D. 2014 catalogue: pages 5-15

E. 2015 catalogue: pages 5-15

Enclosure 4: Price lists of PRIMA products of the years 2011 – 2015. PRIMA products appear indicated in the following pages:

A. 2011 Price list: pages 4-6 of 8

B. 2012 Price list: pages 4-6 of 9

C. 2013 Price list: pages 3-5 of 6

D. 2014 Price list: pages 4-5 of 6

E. 2015 Price list: pages 4-6 of 6

Enclosure 5: Invoices of PRIMA products issued in the years 2006, 2007, 2008, 2009, 2010, 2011, 2012 and 2014.

Enclosure 6: Certificates of suppliers (units provided from 2006 to 2014): A. Plastienvase, SL - supplier of film B. Saica Pack S. L. - supplier of corrugated cardboard based on recycled paper C. Smurfit Kappa S.A. - supplier of cardboard packaging D. SP BERNER PLASTIC GROUP, S.L. - supplier of caps.

Enclosure 7:  certificate by Infoadex, S.A., a company active in advertising investment control and analysis, which shows Opponent’s advertising investment in connection with PRIMA trademarks at list price. That is, as of November 2011 (December in case of sponsorship), the Opponent invested nearly thirty-three million Euro (€ 32,722,280) to promote its PRIMA products.

Enclosure 8: Supermarket leaflets of 2014:

A. Cash Galicia - June 2014 (Ketchup and mayonnaise at page 8 of 16)

B. Cash Galicia - August 2014 (ketchup at page 5 of 16)

C. Miquel - June 2014 (ketchup at page 16 of 32)

D. SuperCash - June 2014 (oil and vinegar at page 18 of 36 and salt at page 19 of 36).

Enclosure 9: printouts of newspaper advertisements where PRIMA products are associated with Jorge Lorenzo’s image, and Enclosure 17 includes printout of Wikipedia webpage which confirms the exceptional diffusion and popularity of "Marca" and "As" newspapers among the Spanish consumers.

Enclosure 10 printout of Wikipedia online encyclopaedia with Jorge Lorenzo's biography. Taking advantage of the large media impact of this great sportsman, the Opponent used his image to promote PRIMA products on TV and in the press. Advertisements in the press concentrated in those sports newspapers that, according

to Estudio General de Medios (EGM), are the most popular in Spain ("Marca", "As", etc.).

In this connection, this shows that the Opponent congratulates with or spurs Jorge Lorenzo after every Grand Prix. This way, it identifies PRIMA interest and values with the sportsman's and, consequently, with those of his followers. Finally, as an additional promotional activity, Jorge Lorenzo official webpage (http://www.iorgelorenzo.com) allocates space for the PRIMA trademark to show its

link with Jorge Lorenzo.

Enclosure 11:  sample of advertisements published in the sports press of PRIMA products associated with the image of the national under-21 football team and Valencia Basket Club S.A.D.

Enclosure 12:  survey of the Marketing Department of Sevilla FC on Opponent’s sponsorship for PRIMA trademarks whilst

Enclosure 13: newspaper advertisements where PRIMA products are associated with Sevilla FC football team image. c) Sponsorship of the Spain national under-21 football team With a view to foster healthy life based on practicing sports among the youth and their families, the Opponent is sponsor also of the Spanish under-21 football team to transmit future values.

Enclosure 13: printouts of newspaper advertisements (Sevilla FC football team) Valencia Basket Club S.A.D.

Enclosure 14:  printout of Wikipedia online encyclopaedia which shows the history and results of Sevilla FC football team. The sponsorship mostly consisted in the exhibition of advertisements in the football stadium of said team and the development of several press advertising campaigns for the same target public as in the above-mentioned sponsorship of Jorge Lorenzo.

Enclosure 15: sampling of advertisements in the sports press of PRIMA products linked to the image of Valencia Basket Club, S.A.D.

Enclosure 16:  a printout of Wikipedia online encyclopaedia on the history and results of Valencia Basket Club S.A.D.

Enclosure 17: a printout of Wikipedia page of Spanish newspapers “Marca” and “As”

Enclosure 18:  public-opinion poll carried out by Agencia M.B. Consultores in the year 2015 on 300 housewives of the Autonomous Communities of Madrid, Cataluña, Andalucía, Levante, Aragón, País Vasco, Castilla-León, Galicia, Castilla-La Mancha, and Extremadura. In this connection, the spontaneous awareness of the PRIMA trademark is 61.3% and the aided awareness is 34.7%. Consequently, 96% of consumers know this trademark.

Enclosures 19 and 20: public-opinion poll carried out by M.B. Consultores in the years 2012 and 2010.

On the basis of the above the Opposition Division concludes that the earlier trade mark has a reputation in Spain.

The evidence relates to the relevant period and shows that on account of the intensity and duration of use and the value associated with the mark a significant part of the relevant public recognises the trade mark ‘PRIMA’ and knows the goods marketed under this sign. The earlier trade mark has been subject to long-standing and intensive use and is generally known in the food condiments. This is also attested by the public-opinion poll conclusions that underlines that the awareness of these trademarks is earlier (7 years ago) than the time when the Primavita trademark was filed. In this connection, following are M.B. Consultores's conclusions: "Prima enjoys very widespread awareness, 96%, but more important is its large spontaneous awareness, 61.3%. It is best known for its Ketchup (bottled) and mayonnaise (in packet). On the average, it is has been known for 7 years". Furthermore, the continuous advertising and promotional campaigns are particularly significant.

In particular, the sales figures and the global advertising budget featuring the earlier trade mark during the period from 2010 to 2015 to promote the ‘PRIMA’ trademarks lead to the widespread presence of ‘PRIMA’ trademarks on the market and, together with the remaining evidence, they allow the conclusion that the mark ‘SPA’ is widely recognised by the Benelux consumers as a very well-known mark.

From all the above mentioned it can be concluded that the ‘PRIMA’ reputation is beyond serious dispute. The opponent has provided cogent and incontrovertible evidence that the trade mark in question has been put to intensive use. The evidence demonstrates that it has sold substantial amounts of bottles of water. It is, therefore, reasonable that the trade mark in question must have come to the attention of a large number of consumers in Spain, especially as the opponent has also supplied so much evidence regarding the ‘PRIMA’ brand. It shows unequivocally that the mark shows a high degree of recognition among the relevant public.

However, the evidence does not succeed in establishing that the trade mark has a reputation for all the goods on which the opposition is based and for which reputation has been claimed. The evidence mainly relates to sauces and condiments, whereas there is no or little reference to the remaining goods. This is clear, for example, from the market share report, sales figures and catalogues, where only the former are mentioned.

Therefore, taken all the evidence as a whole, the Opposition Division finds that the mark ‘PRIMA’ enjoys a reputation in the Spain for sauces and condiments and will examine the remaining requirements for Article 8(5) EUTMR based on these goods.

3. The ‘link’ between the signs

As seen above, the earlier mark is reputed and the signs are similar. 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.

In the present case, the signs are found to be visually, aurally and conceptually similar to an average degree, as pointed out already above. Although the word ‘PRIMA’ is also followed by the word ‘VITA’ in the contested sign, the Opposition Division is of the opinion that the inclusion of this word in the application contributes to the finding of a link between the marks at issue.

Furthermore, there exists also a certain link between the powdered milk for food; milk powder in Class 30 and the earlier goods in Class 29. All these goods are for human consumption and belong to the foods sector. Furthermore, the goods show some points of contact, since mineral waters and their mineral salts can be used for the production of, for example, vitamins, homeopathic preparations and also for the above mentioned goods.

Therefore, the contested sign, ‘PRIMAVITA’, is considered to trigger a link with the reputed earlier mark, ‘PRIMA’, in the mind of the relevant public for the applicant’s goods, powdered milk for food; milk powder in Class 29.

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).

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:

There exists the possibility that consumers are initially attracted to contract or buy the said products, thinking they are going to enjoy the special characteristics of quality, tradition and effectiveness that are common in the products bearing the popular or well-known trademark.

In this connection, the decision of the Court of Justice of the European Union dated March 22, 2007 (T-215/03 - Sigla, S.A. v. OAMI), which held what follows, is illustrative: "Finally, the concept of illegal exploitation of the distinctiveness or awareness of the earlier trademark for the use without just cause of the applied-for trademark includes the cases where clear exploitation and illegal benefit of a famous trademark or the intention to take advantage of its awareness exist (decision SPA-FINDERS [TJCE 2005, 139], as mentioned in section 34 above, section 51). In other words, it is the risk that the image of the well-known trademark or the characteristics projected by it move to the products indicated by the requested trademark, so that its marketing is helped by this association with the well-known earlier trademark."

In the present case, the ‘PRIMAVITA’ trademark is very similar to ‘PRIMA’ trademark, since it reproduces ‘PRIMA’ and adds the word ‘vita’.

Based on the above, it is likely that consumers will think that ‘PRIMAVITA’ products have some commercial relationship with ‘PRIMA’ trademarks and, consequently, consumers will think that the former ones will enjoy the same quality standards as the latter ones; as a consequence, the applicant will find its way paved for its products to be more easily purchased by consumers.

As a matter of fact, the average consumer will think that ‘PRIMAVITA’ is a new range

of products of the’ PRIMA’ family-food products and said circumstance is likely to be

realized due to the fact that ‘PRIMAVITA’, like the ‘PRIMA’ one, will be used to countersign food or food products that perform the same function, and, consequently, consumers may think that Bolton, as manufacturer of ‘PRIMA’ food products, has simply diversified its activity.

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.

Before examining the opponent’s claim, it is appropriate to recall that the opposition is directed against the following goods:

Class 29:        Powdered milk for food; milk powder.

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

Class 30:        Sauces and condiments.

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).

According to the opponent, there exists the possibility that consumers are initially attracted to contract or buy the said products, thinking they are going to enjoy the special characteristics of quality, tradition and effectiveness that are common in the products bearing the popular or well-known trademark.

Based on the above, it is likely that consumers will think that ‘PRIMAVITA’ products have some commercial relationship with ‘PRIMA’ trademarks and, consequently, consumers will think that the former ones will enjoy the same quality standards as the latter ones; as a consequence, the applicant will find its way paved for its products to be more easily purchased by consumers.

As a matter of fact, the average consumer will think that ‘PRIMAVITA’ is a new range

of products of the ‘PRIMA’ family-food products and said circumstance is likely to be

realized due to the fact that ‘PRIMAVITA’, like the ‘PRIMA’ one, will be used to countersign food or food products that perform the same function, and, consequently, consumers may think that Bolton, as manufacturer of ‘PRIMA’ food products, has simply diversified its activity.

According to the Court of Justice of the European Union, as regards injury consisting of unfair advantage taken of the distinctive character or the repute of the earlier mark, insofar as what is prohibited is the drawing of benefit from that mark by the proprietor of the later mark, the existence of such injury must be assessed by reference to the average consumers of the goods or services for which the later mark is registered, who are reasonably well informed and reasonably observant and circumspect (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 36.)

In the present case, in view of the nature of the goods at issue, it is considered that the relevant public against which the injury to reputation must be assessed is the average consumer in the Spain.

As seen above, there is a ‘link’ between the signs due to the similarity of the signs, the inherent distinctiveness and strong reputation of the earlier mark and the relationship between the goods, as proved by the opponent.

According to the Court, the stronger the earlier mark’s distinctive character and reputation, the easier it will be to accept that detriment has been caused to it (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 67, 74; 25/05/2005, T-67/04, Spa-Finders, EU:T:2005:179, § 41). The same applies to the unfair advantage that the applicant might enjoy at the expense of the earlier mark. A very strong reputation is both easier to harm and more tempting to take advantage of, owing to its great value.

The Court has even stated that it is possible that an extremely strong reputation may, exceptionally, constitute in itself an indication of the future, non-hypothetical risk of the mark applied for as such taking unfair advantage in relation to each of the goods and services which are not similar to the goods and services in respect of which the earlier trade mark is registered (02/10/2015, T-625/13, Darjeeling collection de lingerie / DARJEELING et al., EU:T:2015:742, § 134, 139).

In the present case, there is a high probability that the use of the contested mark may lead to free-riding, that is to say, it would take unfair advantage of the established reputation of the earlier trade mark and the huge investments made by the opponent to achieve that reputation.

It is clear from the evidence submitted that the opponent’s advertising efforts have focused on and succeeded in not only creating widespread high awareness of the earlier mark but also ensuring that it projects a very positive image in many different respects (e.g. expertise, high service quality, reliability).

The applicant refers to previous decisions to support its arguments and provides with copies of them. However, it must be noted that decisions of national courts and national offices regarding conflicts between identical or similar trade marks on the national level do not have a binding effect on the Office since the European Union trade mark regime is an autonomous system which applies independently of any national system (13/09/2010, T-292/08, Often, EU:T:2010:399). Additionally, the Office is not bound by its previous decisions as each case has to be dealt with separately and with regard to its particularities.

Even though previous decisions are not binding, their reasoning and outcome should be duly considered, particularly when the decision has been taken in the Member State that is relevant to the proceedings.

In the present case, the previous cases referred to by the applicant are not relevant to the present proceedings. The material part of the aforesaid decisions concerns almost exclusively with the interpretation of Article 8(1)(b) EUTMR, i.e. likelihood of confusion.  This is not the issue with the present decision ruling reputation and unfair advantage pursuant to Article 8(5) EUTMR].

On the basis of the above, the Opposition Division is of the view that there is a serious risk that the use of the contested mark by the applicant could encourage the public to buy the applicant’s goods by reason of the association that it would make with the opponent’s trade mark, because of the high reputation, positive image and great commercial value 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.

5. Conclusion

Considering all the above, the opposition is well founded under Article 8(5) EUTMR. Therefore, the contested trade mark must be rejected for all the contested goods.

Given that the opposition is entirely successful under Article 8(5) EUTMR it is not necessary to examine the remaining grounds and earlier rights 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.

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

Julia TESCH

Agueda MAS PASTOR

Dorothée SCHLIEPHAKE

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.