OPPOSITION No B 2 217 282

Mibe GmbH Arzneimittel, Münchener Str. 15, 06796 Brehna, Germany (opponent), represented by Dr. Kunz-Hallstein Rechtsanwälte, Galeriestr. 6A, 80539 München, Germany (professional representative)

a g a i n s t

Biofarma société par actions simplifiée, 50, rue Carnot, 92284 Suresnes cedex, France (holder), represented by Cabinet Germain & Maureau, 31-33 rue de la Baume, 75008 Paris, France (professional representative).

On 04/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 217 282 is upheld for all the contested goods.

2.        International registration No 1 129 769 is entirely refused protection in respect of the European Union.

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

REASONS:

The opponent filed an opposition against all the goods of international registration designating the European Union No 1 129 769. The opposition is based on German trade mark registration No DD 607 116. The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR (in the version in force at the time of filing of the opposition), if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

For international registrations designating the European Union, the ‘date of publication’ of the contested mark within the meaning of Article 42(2) EUTMR, that is to say for the purposes of establishing the five-year period of use obligation for the earlier mark, is considered to be six months after the first republication of the international registration, which corresponds to the beginning of the opposition period (Article 156 EUTMR in conjunction with Article 152 EUTMR, in the version in force at the time of filing of the opposition). The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The holder requested that the opponent submit proof of use of the trade mark on which the opposition is based, namely German trade mark No DD 607 116.

The request was submitted in due time and is admissible as the earlier trade mark was registered more than five years prior to the relevant date mentioned below.

The relevant date (first republication of the contested international registration plus six months) is 15/04/2013. The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in Germany from 15/04/2008 to 14/04/2013 inclusive.

Furthermore, the evidence must show use of the trade mark for the goods on which the opposition is based, namely the following:

Class 5:        Medicines, chemical preparations for medical purposes and health care, pharmaceutical drugs.

According to Rule 22(3) EUTMIR, the evidence of use must consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based.

On 10/03/2016, according to Rule 22(2) EUTMIR, the Office gave the opponent until 22/05/2016 to submit evidence of use of the earlier trade mark. On 18/05/2016, within the time limit, the opponent submitted evidence of use.

As the opponent requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Opposition Division will describe the evidence only in the most general terms without divulging any such data.

The evidence to be taken into account is, in particular, the following:

• Exhibit 1

This exhibit is a sworn declaration signed by the trade mark administrator at Mibe GmbH Arzneimittel. It gives figures for sales volumes and turnovers in relation to products labelled with the mark ‘ASCORVIT’ for 2009-2012.

• Exhibit 2

This exhibit consists of several items of packaging and the corresponding information leaflets, undated. They refer to the mark ‘ASCORVIT’ for medicines and pharmaceutical drugs (i.e. vitamin preparations). All these documents contain appropriate information about applications and chemical composition.

• Exhibit 3

This exhibit includes a list of medicines and pharmaceutical drugs offered by the opponent. This document is dated 01/08/2013.

• Exhibit 4

This exhibit consists of extracts from the ‘Rote Liste’ information booklet for the following years: 2008, 2010, 2012 and 2014. ‘Rote Liste’ is a list of all registered pharmaceutical drugs in Germany, which is issued by Rote Liste Service GmbH and intended for physicians and pharmacists in primary healthcare and clinics. The extracts refer to the mark ‘ASCORVIT’ for medicines and pharmaceutical drugs (i.e. vitamin preparations).

• Exhibit 5

This exhibit contains a few extracts from the Lauer Taxe Kompetenz on-line database, retrieved in April 2016. Lauer Taxe Kompetenz on-line is a list of all pharmaceutical drugs available in Germany, aimed at pharmacies, clinics, pharmaceutical firms and health insurance companies. The extracts refer to the mark ‘ASCORVIT’ for medicines and pharmaceutical drugs (i.e. vitamin preparations).

• Exhibit 6

This exhibit includes 12 copies of invoices issued to clients in various German cities showing the use of the mark ‘ASCORVIT’ for medicines and pharmaceutical drugs (i.e. vitamin preparations). They bear various dates (e.g. invoice No RCH21003938 of 20/01/2010, invoice No RCH21171359 of 13/10/2011, invoice No RCH21234007 of 24/04/2012, invoice No RCH20916091 of 24/03/2009, invoice No RCH20965161 of 27/10/2009, invoice No RCH21046703 of 12/07/2010, invoice No RCH21070509 of 26/10/2010 and invoice No RCH21103428 of 17/01/2011).

The holder argues that the opponent did not submit translations of some of the evidence of use (e.g. the extracts from the ‘Rote Liste’ information booklet) and that therefore this evidence should not be taken into consideration. However, the opponent is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (Rule 22(6) EUTMIR). Taking into account the nature of the documents which have not been translated and are considered relevant for the present proceedings, for instance the invoices, the extracts from the ‘Rote Liste’ information booklet and the extracts from the Lauer Taxe Kompetenz on-line database, and their self-explanatory character, the Opposition Division considers that there is no need to request a translation.

As far as the sworn declaration (i.e. the affidavit of which Exhibit 1 consists) is concerned, Rule 22(4) EUTMIR expressly mentions written statements referred to in Article 78(1)(f) EUTMR as admissible means of proof of use. Article 78(1)(f) EUTMR lists means of giving evidence, amongst which are sworn or affirmed written statements or other statements that have a similar effect according to the law of the State in which they have been drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perception of the party involved in the dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all.

The final outcome depends on the overall assessment of the evidence in the particular case. This is because, in general, further evidence is necessary to establish use, since such statements have to be considered as having less probative value than physical evidence (labels, packaging, etc.) or evidence originating from independent sources.

Bearing in mind the foregoing, it is necessary to assess the remaining evidence to see whether or not the contents of the declaration are supported by the other items of evidence.

Assessment of evidence

The Court of Justice has held that there is ‘genuine use’ of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, the condition of genuine use of the mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (11/03/2003, C-40/01, Minimax, EU:C:2003:145, and 12/03/2003, T-174/01, Silk Cocoon, EU:T:2003:68).

As a preliminary remark, the Opposition Division notes that some items of evidence show use of the opponent’s mark by different companies (i.e. the ‘Rote Liste’ information booklet and the Lauer Taxe Kompetenz on-line database). According to Article 15(2) EUTMR, use of the mark with the consent of the proprietor is deemed to constitute use by the proprietor. The fact that the opponent submitted evidence of use of its marks by a third party implicitly shows that it consented to this use (08/07/2004, T-203/02, Vitafruit, EU:T:2004:225). Moreover, there is evidence (Exhibits 4 and 5) corroborating the fact that the use by the third party was made with the opponent’s consent. To this extent, and in accordance with Article 15(2) EUTMR, the Opposition Division considers that the use made by the other companies was made with the opponent’s consent and thus is equivalent to use made by the opponent.

Place of use

The invoices (Exhibit 6) and the ‘Rote Liste’ information booklet (Exhibit 4) show that the place of use is Germany. This can be inferred from the addresses indicated in the invoices and the fact that the ‘Rote Liste’ information booklet is a list of all registered pharmaceutical drugs in Germany. Therefore, the evidence relates to the relevant territory. Other documents, such as items of packaging and information leaflets, are also in German and target the German public.

Time of use

Most of the evidence in Exhibits 1, 4 and 6 is dated within the relevant period.

Even though some of the evidence is not dated (i.e. the documents in Exhibit 2), it can still be taken into consideration in conjunction with the other evidence that is dated within the relevant period, such as the invoices, as the undated evidence provides useful indications regarding the nature of use. In the present case, the undated evidence is items of packaging and information leaflets, which demonstrate how the earlier mark was used.

Extent of use

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

Although the statements made in the sworn declaration (Exhibit 1) as regards commercial turnover are backed up by only a few items of evidence, namely the 12 sample invoices (Exhibit 6), which do not provide the Opposition Division with extensive information in this regard, the invoices demonstrate that the opponent had commercial relations with customers based in Germany, and the Opposition Division finds that the evidence provides sufficient information concerning the territorial scope of the use. This was confirmed in the sworn declaration made by Barbara Humer, responsible for the opponent’s global trade mark portfolio.

A sufficient duration of use is clearly indicated by the fact that the opponent submitted invoices for each year of the relevant period. With regard to the frequency of use, the invoices leave no doubt that sales transactions under the ‘ASCORVIT’ trade mark were carried out regularly throughout the relevant period.

Finally, the inclusion of the pharmaceutical ‘ASCORVIT’ in the ‘Rote Liste’ and the packaging samples demonstrate, at least, the opponent’s serious intention to use the mark, and are strong indicators of its actual use. Moreover, use of the mark need not be quantitatively significant for it to be deemed genuine.

In the context of the global assessment of whether the earlier mark has been genuinely used, these circumstances allow the conclusion that the extent of use of the mark was indeed sufficient.

Nature of use

In the context of Rule 22(3) EUTMIR, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, of the use of the mark as registered, or of a variation thereof according to Article 15(1), second subparagraph, point (a) EUTMR, and of its use for the goods and services for which it is registered. It should be noted that the earlier trade mark, which is a word mark, can be used in any form.

The evidence, in particular the items of packaging and information leaflets and the extracts from the ‘Rote Liste’ information booklet, shows that the earlier sign was used in such a way as to establish a clear link between the goods and the company responsible for their manufacturing and marketing. Therefore, the evidence demonstrates that the opponent’s mark was used to identify the commercial origin of the goods in question.

The ‘ASCORVIT’ mark is registered as a word mark and is used by the opponent in a standard font. The evidence shows, however, that the earlier mark is often used in combination with other words and numbers, such as ‘200 mg FT’ or ‘500 mg FT’. It is common practice, particularly in the relevant market sector, for an individual mark to be used together with such words describing characteristics of the medicines/pharmaceuticals. Therefore, it is considered that the opponent’s trade mark ‘ASCORVIT’ was used as registered.

Overall assessment

Taking into account the evidence in its entirety, although the evidence submitted by the opponent is not particularly exhaustive, it does reach at least the minimum level necessary to establish genuine use of the earlier trade mark during the relevant period in the relevant territory.

However, the evidence filed by the opponent does not show genuine use of the trade mark for all the goods covered by the earlier trade mark.

According to Article 42(2) EUTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it will, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.

According to case-law, when applying the abovementioned provision the following should be considered:

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub-categories.

(14/07/2005, T-126/03, Aladin, EU:T:2005:288).

In the present case, the evidence proves use only for ascorbic acid (i.e. vitamin preparations). These goods can be considered to form an objective subcategory of medicines, chemical preparations for medical purposes and health care, pharmaceutical drugs, namely vitamin preparations. Therefore, the Opposition Division considers that the evidence shows genuine use of the trade mark only for vitamin preparations.

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 5:         Vitamin preparations.

The contested goods are the following:

Class 5:         Pharmaceutical preparations for human use; dietetic substances for medical use.

Contested goods in Class 5

The contested pharmaceutical preparations for human use and dietetic substances for medical use overlap with the opponent’s vitamin preparations. Therefore, they are identical.

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 are directed at the general public as well as at professional consumers with specific professional knowledge or expertise, namely professionals in the medical and pharmaceutical fields.

It is apparent from the case-law that, insofar as pharmaceutical preparations are concerned, the relevant public’s degree of attention is relatively high, whether or not issued on prescription (15/12/2010, T-331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T-288/08, Zydus, EU:T:2012:124, § 36 and cited case-law).

In particular, medical professionals have a high degree of attentiveness when prescribing medicines. Non-professionals also have a higher degree of attention, regardless of whether the pharmaceuticals are sold without prescription, as these goods affect their state of health.

Given that the general public is more prone to confusion, the examination will proceed on this basis. Taking into account the abovementioned facts, the degree of attention of this part of the public will vary from average (i.e. for dietetic substances for medical use) to high (i.e. for pharmaceutical preparations for human use).

3. The signs

ASCORVIT	ASCORAM
Earlier trade mark	Contested sign

The relevant territory is Germany.

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).

Both signs are word marks consisting of one word, namely ‘ASCORVIT’ (the earlier mark) and ‘ASCORAM’ (the contested sign).

Both signs are meaningless for German consumers, as they are invented words. However, bearing in mind the nature of the relevant goods, some German consumers might mentally divide the earlier mark into ‘ASCOR’ and ‘VIT’. This is because they may perceive the ending, ‘VIT’, of the mark as an abbreviation of ‘Vitamin’, which is the German word for ‘vitamin’. This ending could also be perceived by the relevant public as an abbreviation of ‘Vitalität’, which is the German word for ‘vitality’.

In addition, the holder argues that the element ‘ASCOR’ will be associated with ‘Ascorbinsäure’ (i.e. ascorbic acid). The Opposition Division, however, is of the opinion that the general public will not make this association, as this is not a commonly used word. The general public commonly refers to this vitamin as ‘Vitamin C’ and does not necessarily know the technical term for it; the general public is not likely to immediately associate the five letters ‘ASCOR’ with characteristics of the goods. Consequently, the Opposition Division will focus the assessment of likelihood of confusion on that part of the public.

For the part of the public that does not associate the earlier mark with any meaning or divide it mentally as explained above, the earlier mark has no elements that are more distinctive than other elements.

For the part of the public that divides the earlier mark mentally and perceives ‘VIT’ as alluding to ‘Vitamin’ or ‘Vitalität’, this ending is weak in relation to the goods in question, because it indicates their characteristics, namely the compounds or ingredients of which they are composed. For this part of the public, the ending ‘VIT’ has a lower than average degree of distinctiveness in relation to all the relevant goods.

The contested sign has no elements that could be considered clearly more distinctive than other elements.

The signs, each consisting of one word, have no elements that could be considered clearly more dominant (visually eye-catching) than other elements.

Visually and aurally, the signs coincide in ‘ASCOR’. However, they differ in their endings, that is, ‘VIT’ and ‘AM’. With regard to the aural comparison, the pronunciation differs in the sound of the last three letters ‛VIT’ of the earlier sign, which have no counterpart in the earlier sign. By contrast, the last two letters in the contested sign are ‛AM’.

The signs’ first five letters coincide. 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.

Therefore, the signs are visually and aurally similar at least to an average degree. However, the degree of similarity will be even higher for the part of the public that associates the verbal element ‘VIT’ with the relevant goods, as explained above.

Conceptually, although a part of the public in the relevant territory could perceive a meaning in the element ‘VIT’ of the earlier mark, as explained above, the other sign has no meaning in that territory. Since one of the signs will not be associated with any meaning, the signs are not conceptually similar.

For the part of the public for which neither of the signs has a meaning, since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity between the signs.

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 territory. Therefore, the distinctiveness of the earlier mark must be seen as normal, despite the presence of a weak element, for a part of the public, namely ‛VIT’, in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The Court has stated that likelihood of confusion must be appreciated globally, taking into account all the factors relevant to the circumstances of the case; this appreciation depends on numerous elements and, in particular, on the degree of recognition of the mark on the market, the association that the public might make between the two marks and the degree of similarity between the signs and the goods and services (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 22).

The goods are identical, and they target, inter alia, the public at large, whose degree of attention varies from average to high. The signs are visually and aurally similar at least to an average degree (for the part of the public that associates the verbal element ‘VIT’ with the relevant goods, the degree of similarity is even higher). Furthermore, the earlier mark has a normal degree of distinctiveness.

Account is 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).

Furthermore, a high degree of attention does not automatically lead to a finding of no likelihood of confusion. All other factors have to be taken into account. A likelihood of confusion can exist despite a high degree of attention. For example, when there is a strong likelihood of confusion created by other factors, such as the identity or close overall similarity between the marks and the identity between the goods, the attention of the relevant public alone cannot be relied upon to prevent confusion (21/11/2013, T-443/12, ancotel, EU:T:2013:605, § 53-56; 06/09/2010, R 1419/2009-4, Hasi).

Bearing in mind the consumer’s imperfect recollection, the differences between the marks are not sufficient to outweigh the similarities between them and to exclude any likelihood of confusion in relation to identical goods. The Opposition Division is convinced that, in view of the commonality in five out of eight and seven letters of the signs, consumers might believe that the conflicting goods come from the same undertaking or economically linked undertakings, even in relation to goods for which their degree of attention is high.

In its observations, the holder argues that the earlier trade mark has a low distinctive character given that there are many trade marks that include ‘ASCOR’. According to the holder, it is ‘confirmed by the existence of around 70 marks protected in Class 5 in EU countries and in the name of different undertakings’. In support of its argument, the holder refers to several trade mark registrations in, inter alia, France, Germany, Greece, Italy, Poland and Spain.

The Opposition Division notes that the existence of several trade mark registrations is not per se particularly conclusive, as it does not necessarily reflect the situation in the market. In other words, on the basis of data concerning a register only, it cannot be assumed that all such trade marks have been effectively used. It follows that the evidence filed does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include ‘ASCOR’. Under these circumstances, the holder’s claims must be set aside.

The holder refers to a previous judgment of the General Court (13/02/2007, T-256/04, ATOPICA, EU:T:2007:46) to support its arguments. However, the Office is not bound by any previous decisions or judgments as each case has to be dealt with separately and with regard to its particularities.

This practice has been fully supported by the General Court, which stated that, according to settled case-law, the legality of decisions is to be assessed purely with reference to the EUTMR, and not to the Office’s practice in earlier decisions (30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).

Even though previous judgments of the Court are not binding, their reasoning and outcome should still be duly considered when deciding upon a particular case.

In the present case, the previous case referred to by the holder is not relevant to the present proceedings, as it concerns other factual and legal circumstances. Therefore, this argument of the holder has to be set aside.

Considering all the above, there is a likelihood of confusion on the part of the public.

Therefore, the opposition is well founded on the basis of the opponent’s German trade mark registration No DD 607 116. It follows that the contested trade mark must be rejected for all the contested goods.

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 holder 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

Natascha GALPERIN

Michal KRUK

Plamen IVANOV

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.