THE FORCE | Decision 2706227

Date Published: Sep 22, 2017

OPPOSITION No B 2 706 227

Dynamite Baits Limited, The Development Centre Fosseway Cotgrave, Nottingham NG12 3HG, United Kingdom (opponent), represented by Browne Jacobson LLP, Victoria Square House, Victoria Square, Birmingham B2 4BU, United Kingdom (professional representative)

a g a i n s t

Ifid SRL, Via Barone 5, 31030 Casier (TV), Italy (applicant).

On 13/09/2017the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 706 227 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 040 843 for the figurative mark . The opposition is based on European Union trade mark registration No 2 975 324 and the non−registered trade mark in the United Kingdom, both for the word mark ‘THE SOURCE’. The opponent invoked Article 8(1)(b), 8(4) and 8(5) 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.

1. The goods

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

Class 28:        Fishing bait made of natural and/or artificial materials; apparatus for use in fishing.

The contested goods are the following:

Class 28:        Artificial baits for fishing; rods for fishing; floats for fishing; decoys for hunting or fishing; fishing equipment; lines for fishing; reels for fishing; creels [fishing traps]; lines for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; scent lures for hunting or fishing.

Class 31:        Fresh garlic; citrus fruit, fresh; Christmas trees; trees; algarovilla for animal consumption; seaweed for human or animal consumption; foodstuffs and fodder for animals; foodstuffs and fodder for animals; bird food; menagerie animals; live animals; peanuts, fresh; spiny lobsters, live; fresh oranges; bushes; herrings, live; lobsters, live; oats; juniper berries; fresh berries; silkworms; bagasses of cane [raw material]; beet, fresh; beverages for pets; mushroom spawn for propagation; dog biscuits; lime for animal forage; sugarcane; fresh artichokes; locust beans, raw; sanded paper for pets [litter]; chestnuts, fresh; vine plants; cereal seeds, unprocessed; cucumbers, fresh; chicory, fresh; flower bulbs; onions, fresh vegetables; arrangements made of fresh fruit; shellfish, live; hop cones; copra; wreaths of natural flowers; shellfish, live; crustaceans, live; bran; garden herbs, fresh; fishing bait, live; peanut meal for animals; flax meal [fodder]; flaxseed meal for animal consumption; fish meal for animal consumption; rice meal for forage; meal for animals; beans, fresh; hay; flowers; flowers, dried, for decoration; fresh fruits; mushrooms, fresh; live prawns; germ (seed -) for botanical purposes; wheat germ for animal consumption; grains [cereals]; wheat; maize; coconut shell; lettuce, fresh; undressed timber; raw timber; fresh vegetables; lentils, fresh; products for animal litter; yeast for animal consumption; lemons, fresh; hops; malt for brewing and distilling; almonds [fruits]; pet food; stall food for animals; fresh hazelnuts; coconuts; cola nuts; nuts [fruits]; edible chews for animals; olives, fresh; sea-cucumbers, live; nettles; barley; cuttle bone for birds; oysters, live; mulch; straw [forage]; straw litter; palm trees; palms [leaves of the palm tree]; oil cake; peanut cake for animals; rape cake for cattle; maize cake for cattle; mash for fattening livestock; bran mash for animal consumption; potatoes, fresh; peppers [plants]; live fish; plants; aloe vera plants; plants, dried, for decoration; seedlings; pine cones; peas, fresh; live poultry; pollen [raw material]; leeks, fresh; bred stock; egg laying poultry (preparations for -); livestock fattening preparations; rhubarb, fresh; roots for food; chicory roots; cereals (residual products of -) for animal consumption; distillery waste for animal consumption; unprocessed rice; rose bushes; pets (aromatic sand for -) [litter]; salt for cattle; salmon, live; sardines, live; raw barks; rye seed; unprocessed linseed; flaxseed for animal consumption; cocoa beans, raw; grains for animal consumption; seeds; groats for poultry; edible sesame, unprocessed; strengthening animal forage; spinach, fresh; rough cork; natural turf; truffles, fresh; tuna, live; products for animal litter; draff; trunks of trees; wood chips for the manufacture of wood pulp; eggs for hatching, fertilised; fish spawn; silkworm eggs; grapes, fresh; residue in a still after distillation; marc; marrows, fresh; fresh zucchini.

Some of the contested goods are identical to goods on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods listed above. The examination of the opposition will proceed as if all the contested goods were identical to those of the earlier mark.

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 relevant goods are directed at the public at large and/or business customers with specific professional knowledge or expertise.

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

THE SOURCE
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).

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to assess the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish that the public may be confused about origin due to similarities that pertain solely to non-distinctive elements.

The English and French words ‘SOURCE’ in the earlier mark and ‘FORCE’ in the contested sign are understood in part of the EU. As the concepts conveyed by these words are dissimilar and therefore increase the differences between the marks, the Opposition Division considers that the public more prone to confuse the marks is made up of consumers who will not associate these words with any concept. For example, for Hungarian-, Bulgarian- or Estonian-speaking parts of the public, these words have no meaning. The Opposition Division will first examine the opposition in relation to the part of the public for which ‘SOURCE’ and ‘FORCE’ have no meaning and have a normal degree of distinctiveness.

The first element, ‘THE’, common to the signs, is a basic English word and will be associated by the consumers in question with the English definite article, namely as a determiner that expresses the reference to that noun. Its capacity to identify the goods covered by the marks as coming from a particular undertaking is low. Therefore, it has a low distinctiveness in both signs.

Consumers generally tend to focus on the beginning of a sign when they encounter a trade mark. This is because the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader. In the present case, both signs begin with the word ‘THE’. However, in the contested sign, ‘THE’ is small sized, not visible at first glance and ‘FORCE’ is the dominant element as it is the most eye-catching. Therefore, it is likely that ‘FORCE’ will be perceived before ‘THE’ as the latter requires more time and attention to be seen.

Visually, the signs coincide in the word ‘THE’, which is lowly distinctive in both signs and not dominant in the contested sign. The signs also coincide in the sequence of letters ‘*O(*)RCE’. However, as regards their second verbal element, they differ in the first letters, ‘S’ in the earlier mark and ‘F’ in the contested sign, as well as in the letter ‘U’ in the earlier mark. Visually, the signs also differ in the font style of the contested sign.

Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have a similar number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar.

Therefore, the signs are visually similar to a low degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘*O(*)RCE’, present identically in both signs. It is likely that the largest part of the public will not pronounce the first word ‘THE’ of the contested sign as it is not visible at first glance. However, for those who will pronounce it, the signs also coincide in the sound of those letters. Nevertheless, the fact remains that the distinctiveness of this element is low and its impact in the contested sign, albeit pronounced, remains reduced. The signs differ in some letters of their second verbal elements, namely ‘S*U***’ in the earlier mark and ‘F****’ in the contested sign.

Therefore, taking into account that the differences between the signs are placed at the beginning of the more distinctive element, that is the second word, the signs are aurally similar to a below average degree for some consumers, namely those who will pronounce the element ‘THE’ in both signs, and similar to a low degree for the remaining part of the public in question.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. For part of the public in question, the signs coincide in the element ‘THE’ that has little impact for the reasons given above. To that extent, the signs are conceptually similar to a low degree.

As already explained, part of the public in question will perceive and understand the meaning conveyed by the word ‘THE’ only in the earlier mark. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar for those consumers.

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.

According to the opponent the earlier trade mark has a reputation and enjoys a high degree of distinctiveness as result of its long standing and intensive use in Italy and in the United Kingdom in connection with all the goods on which the opposition is based, namely fishing bait made of natural and/or artificial materials; apparatus for use in fishing in Class 28. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

On 29/12/2016, the opponent submitted the following evidence:

• Copy of fifteen invoices dated in 2014, 2015 and 2016 for the sale of different products. Part of them appear in the description as ‘Source’ products together with other specifications such as ‘liquid’, ‘soluble’, ‘Dip concentrate’, ‘White Fluro’, ‘Feed Pellets’, ‘Stick Mix’, ‘Ready to Use Paste’, ‘Boilies’, ‘S/L’, ‘Hardened Hook Baits’, ‘Groundbait’, ‘Pop Ups’, ‘Base Mix’ as well as with quantities and/or dimensions. The invoices are addressed to clients in Ukraine (1), United Kingdom (3), Spain (2), France (2), Lithuania (1), Czech Republic (1), the Netherlands (2), Poland (1), Denmark (1) and Austria (1).

• ‘Export Catalogues DYNAMITE’ in English for the years 2015 and 2016, showing fishing baits, in the form, for example, of liquids, pellets, boilies, balls (cork balls inserted), paste and others (base mix) referenced in the invoices. The earlier mark appears as registered in the product description and as follows on the packaging .

• Extract of the ‘Trade Catalogue DYNAMITE’ in English for 2014 listing all the products, amongst others, fishing baits labelled ‘The Source’.

• Examples of published advertisements in journals and magazines referring to ‘The Source’ products issued in 2016 (‘International Karper Magazine’, ‘World Carp Classic’, ‘Carp−Talk’).

• Copies of Anglers’ blogs (‘Fishingmagic’, ‘Anglers mail’, ‘UKCarpAngler’, ‘AnglingTimes’, …) and posts from the opponent’s website referring to the use of ‘The Source’ products.

• An example of a corresponding Facebook post referring to the use of ‘The Source’ products.

• Copies of Internet blogs and reviews of ‘The Source’ products.

Having examined the material listed above, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use.

Despite showing some use of the trade mark, the evidence provides little information on the extent of such use. The evidence does not provide any indication of the degree of recognition of the trade mark by the relevant public. Furthermore, the evidence does not indicate the sales volumes, the market share of the trade mark or the extent to which the trade mark has been promoted. As a result, the evidence does not show that the trade mark is known by a significant part of the relevant public. Under these circumstances, the Opposition Division concludes that the opponent failed to prove that its trade mark has reputation and has acquired a high degree of distinctiveness through its use.

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 territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The appreciation of likelihood of confusion on the part of the public depends on numerous elements and, in particular, on the recognition of the earlier mark on the market, the association which can be made with the registered mark, the degree of similarity between the marks and between the goods or services identified (recital 8 of the EUTMR). It must be appreciated globally, taking into account all factors relevant to the circumstances of the case (22/06/1999, C342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 18; 11/11/1997, C251/95, Sabèl, EU:C:1997:528, § 22).

The goods, assumed to be identical, are directed at the public at large and/or business customers with specific professional knowledge or expertise. The degree of attention may vary from average to high.

The signs are visually similar to a low degree, aurally similar to a degree that is below average at best (for some, even to a low degree) and, conceptually similar to a low degree at best (for some, the signs are not even conceptually similar). As a whole, the degree of similarity between the signs is higher for the consumers who will perceive and pronounce the word ‘THE’ in the contested sign. However, even in the best scenario for the opponent, the similarities between the signs are still insufficient to outweigh the important differences existing between them. As the opponent failed to prove a high degree of distinctiveness of its trade mark, the inherent distinctiveness of the earlier mark has been seen as normal.

The differences between the signs are clearly perceivable and sufficient to exclude any likelihood of confusion between the marks.

Considering all the above, even assuming that the goods are identical, there is no likelihood of confusion on the part of the public. Therefore, the opposition must be rejected.

This absence of a likelihood of confusion equally applies to the part of the public for which the element ‘SOURCE’ of the earlier mark and ‘FORCE’ of the contested sign have a meaning, such as English− and French−speaking consumers, because the conceptual differences between these terms help in further differentiating the signs. That part of the public will perceive the signs as being even less similar. It must be pointed out that the pronunciation of the signs by English−speaking consumers is more similar than for other consumers because the sound of the letters ‘OU’ in the earlier mark and ‘O’ in the contested sign is identical. However, the conceptual differences perceived by those consumers largely offset this higher degree of aural similarity between the signs.

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.

Reputation of the earlier trade mark

The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade mark has already been examined above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

It was concluded that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a reputation.

Therefore, the opponent failed to prove that the earlier trade mark has a reputation. As seen above, it is a requirement for the opposition to be successful under Article 8(5) EUTMR that the earlier trade mark has a reputation. Since it has not been established that the earlier trade mark has a reputation, one of the necessary conditions contained in Article 8(5) EUTMR is not fulfilled, and the opposition must be rejected on this ground.

NON-REGISTERED MARK OR ANOTHER SIGN USED IN THE COURSE OF TRADE – ARTICLE 8(4) EUTMR

The opposition is also based on the non-registered trade mark ‘THE SOURCE’ used in the course of trade in the United Kingdom for fishing bait made of natural and/or artificial materials; apparatus for use in fishing.

According to Article 8(4) EUTMR, upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for will not be registered where and to the extent that, pursuant to the Union legislation or the law of the Member State governing that sign:

(a)        rights to that sign were acquired prior to the date of application for registration of the European Union trade mark, or the date of the priority claimed for the application for registration of the European Union trade mark;

(b)        that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.

Therefore, the grounds of refusal of Article 8(4) EUTMR are subject to the following requirements:

• the earlier sign must have been used in the course of trade of more than local significance prior to the filing of the contested trade mark;

• pursuant to the law governing it, prior to the filing of the contested trade mark, the opponent acquired rights to the sign on which the opposition is based, including the right to prohibit the use of a subsequent trade mark;

• the conditions under which the use of a subsequent trade mark may be prohibited are fulfilled in respect of the contested trade mark.

These conditions are cumulative. Therefore, where a sign does not satisfy one of those conditions, the opposition based on a non-registered trade mark or other signs used in the course of trade within the meaning of Article 8(4) EUTMR cannot succeed.

1. Prior use in the course of trade of more than mere local significance

The condition requiring use in the course of trade is a fundamental requirement, without which the sign in question cannot enjoy any protection against the registration of a Community trade mark, irrespective of the requirements to be met under national law in order to acquire exclusive rights. Furthermore, such use must indicate that the sign in question is of more than mere local significance.

It must be recalled that the object of the condition laid down in Article 8(4) EUTMR relating to use in the course of trade of a sign of more than mere local significance is to limit conflicts between signs by preventing an earlier right which is not sufficiently definite – that is to say, important and significant in the course of trade – from preventing registration of a new European Union trade mark. A right of opposition of that kind must be reserved to signs with a real and actual presence on their relevant market. To be capable of preventing registration of a new sign, the sign relied on in opposition must actually be used in a sufficiently significant manner in the course of trade and its geographical extent must not be merely local, which implies, where the territory in which that sign is protected may be regarded as other than local, that the sign must be used in a substantial part of that territory. In order to ascertain whether that is the case, account must be taken of the duration and intensity of the use of the sign as a distinctive element for its addressees, namely purchasers and consumers as well as suppliers and competitors. In that regard, the use made of the sign in advertising and commercial correspondence is of particular relevance. In addition, the condition relating to use in the course of trade must be assessed separately for each of the territories in which the right relied on in support of the opposition is protected. Finally, use of the sign in the course of trade must be shown to have occurred before the date of the application for registration of the European Union trade mark (29/03/2011, C-96/09 P, Bud, EU:C:2011:189, § 157, 159, 160, 163 and 166).

In the present case, the contested trade mark was filed on 16/03/2016. Therefore, the opponent was required to prove that the sign on which the opposition is based, ‘THE SOURCE’, was used in the course of trade of more than local significance in the United Kingdom prior to that date. The evidence must also demonstrate that the opponent’s sign has been used in the course of trade for fishing bait made of natural and/or artificial materials; apparatus for use in fishing.

The evidence of use already listed and analysed above demonstrates that the sign has been used for fishing bait made of natural and/or artificial materials in the relevant territory since at least 2014. The invoices and the ‘Export Catalogues’ show that part of the revenues are export sales. The pictures in the catalogues permit to identify the different goods bearing the mark ‘THE SOURCE’. Nevertheless, there is no evidence demonstrating that the mark has been used in connection with other goods on the basis of which the opposition was entered, namely apparatus for use in fishing. Therefore, the analysis of the opposition will continue with regard only to fishing bait made of natural and/or artificial materials.

2. The right under the applicable law

The opposition is based on a non-registered trade mark used in the United Kingdom.

The opponent claims to have the right to prohibit the use of the contested trade mark under the tort of passing off.

A successful claim for passing off must satisfy three cumulative conditions. Failure to satisfy any one of them means that the claim cannot succeed. The conditions are:

Firstly, the opponent must prove that it enjoys goodwill or is known for specific goods and services under its mark. The evidence must show that the opponent’s mark is recognised by the public as distinctive for the opponent’s goods and services. For the purposes of opposition proceedings, goodwill must be proven to have existed before the filing date of the contested trade mark.

Secondly, the opponent must demonstrate that the applicant’s mark would be likely to lead the public to believe that the applicant’s goods originate from the opponent. In other words, the public would be likely to believe that goods put on the market under the contested trade mark are actually those of the opponent.

Thirdly, the opponent must show that it is likely to suffer damage as a result of the applicant’s use of the contested trade mark.

Regarding the requirement that the opponent must demonstrate that the applicant’s mark would be likely to lead the public to believe that the applicant’s goods originate from the opponent

The contested trade mark must be likely to lead the public to believe that goods to be offered by the applicant are the opponent’s goods. Therefore, it is necessary to examine whether, on a balance of probabilities, it is likely that a substantial part of the relevant public will be misled into purchasing the applicant’s goods in the belief that they are the opponent’s.

Therefore, a comparison of the signs is required.

Furthermore, the public is unlikely to be misled where the contested goods are dissimilar to those upon which the opponent’s goodwill has been built. Therefore, the contested goods must be compared to the goods for which the opponent has shown that it has acquired goodwill through use.

1.        The goods

Some of the contested goods are identical to goods for which the opponent has shown that it has acquired goodwill through use. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the goods. The examination of the opposition will proceed as if all the contested goods were identical to the relevant goods of the earlier mark.

2.        The signs

The signs have already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings.

3.        Global assessment of the conditions under the applicable law

Among other requirements, such as the existence of goodwill in the earlier sign, a passing off action necessarily implies a misrepresentation by the applicant to the public leading, or likely to lead, the public to believe that the goods or services offered by him are the goods or services of the opponent, and the opponent has suffered or is likely to suffer damage as a result of the erroneous belief engendered by the defendant’s misrepresentation.

As pointed out above, there are sufficient differences between the contested sign and the earlier sign to the extent that there is no misrepresentation or likelihood of confusion. In this respect, it must be recalled that consumers from the United Kingdom will perceive and understand the conceptual differences between the terms ‘SOURCE’ of the earlier mark and ‘FORCE’ of the contested sign which help in further differentiating the signs. The conclusion reached in the analysis performed under article 8(1)(b) EUTMR equally applies in the present analysis with regard to misrepresentation.

Therefore, there is no need to examine the remaining two conditions under the tort of passing off (regarding goodwill and damage) and the opposition is not well founded under Article 8(4) EUTMR.

Conclusion

Considering all the above, the opposition must be rejected in its entirety.

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 opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

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

Although the winning party is no longer represented by a professional representative at the time of rendering this decision, it was represented by a professional representative within the meaning of Article 93 EUTMR in the course of the opposition proceedings. Therefore, the winning party incurred representation costs which it is entitled to recover, in accordance with Rule 94(7)(d) EUTMIR.

The Opposition Division

Boyana NAYDENOVA

Benoit VLEMINCQ

Martina GALLE

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.