OPPOSITION No B 2 596 289

Weinkontor Freund GmbH, Nienkamp 17, 33829 Borgholzhausen, Germany (opponent), represented by Mai Rechtsanwälte, Lutterstr. 14, 33617 Bielefeld, Germany (professional representative)

a g a i n s t

Vinocon B.V., Handelsweg 33, 1525 RO Westknollendam, The Netherlands (holder), represented by Onel Trademarks, Leeuwenveldseweg 12, 1382 LX Weesp, The Netherlands (professional representative).

On 05/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 596 289 is partially upheld, namely for the following contested goods and services:

Class 33: Alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails; alcoholic beverages based on grapes and/or grape extracts.

Class 35: Advertising and publicity; advertising agency and sales promotion; dissemination of advertising and promotional materials, including via the internet, in the field of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; sales promotion of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; commercial intermediary services relating to the purchase and sale of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; organization of fairs and exhibitions for commercial and/or advertising purposes; trading information; public relations; execution of advertising campaigns relating to trade fairs, to exhibitions and to congresses; merchandising; the aforesaid services whether or not conducted through the internet.

2.        International registration No 1 232 456 is refused protection in respect of the European Union for all of the above goods and services. It may proceed for the remaining services.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against all the goods and services of international registration designating the European Union No 1 232 456. The opposition is based on European Union trade mark registration No 6 543 961. 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 European Union trade mark No 6 543 961.

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 above.

The relevant date (first republication of the contested international registration plus six months) is 23/07/2015). The opponent was therefore required to prove that the trade mark on which the opposition is based was put to genuine use in the European Union from 23/07/2010 to 22/07/2015 inclusive.

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

Class 35:        Wholesale and retail services in relation to foodstuffs, non-alcoholic and alcoholic beverages, including within the framework of e-commerce; collation and presentation of foodstuffs, non-alcoholic and alcoholic beverages, for others, to enable customers for view and purchase these goods in wholesale outlets, retail outlets, via mail order catalogues or with the aid of electronic media, in particular via the Internet or other telecommunications networks; order placement, delivery services and invoice management, including within the framework of e-commerce.

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 01/04/2016, according to Rule 22(2) EUTMIR, the Office gave the opponent until 01/06/2016 to submit evidence of use of the earlier trade mark. On 19/05/2016, 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:

• Annex 1: Statutory declaration in English from the Director of Miogusto GmbH dated 11/05/2016 and stating that with the consent of the owner of the trade mark owner ‘miogusto’, Weinkontor Freund GmbH, Miogusto GmbH sells foodstuffs and beverages mainly from the Mediterranean area via the internet. The goods are sold through the website www.miogusto.de and through the Amazon website. The declaration also indicates the yearly turnovers, the number of customers that have used the above-mentioned points of sales to buy their products and the yearly marketing expenses between the years 2010 until 2015. A representation of the trade mark as used on the market is also enclosed: .

• 137 invoices dated within the period 01/03/2010 – 24/02/2015. The invoices are in German and include the representation of the trade mark in the headers, , the name of the products sold, their reference number, quantity of goods sold and prices.

• Financial statements of the company Miogusto GmbH for the years 2010 until 2014 showing the annual turnover.

• Extracts from the Amazon.de website showing reviews and feedback from customers posted between 2012 and 2013 for the name ‘Miogusto’.

• Copy of a Facebook page in German with several posts dated 2014 exhibiting foodstuffs and beverages and displaying the name ‘miogusto’ as well as the sign .

• Extracts from the ‘miogusto’ blog in German with articles dated between 2014 and 2015 about foodstuffs and beverages.

• Several invoices in German from a design agency for services provided in relation to the online-shop ‘miogusto.de’ and dated between 2010 until 2015.

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).

The documents listed above show that the place of use is Germany. This can be inferred from the language of most of these documents that is German, the currency mentioned, euro, and the addresses of the clients that are all in Germany. This conclusion is supported by the statutory declaration showing that the company Miogusto GmbH that is using the trade mark ‘miogusto’ with the consent of its owner is clearly established in Germany. The applicant argues that the use in Germany only is not sufficient to prove the place of use however, depending on the relevant facts and circumstances of the case, the use of a European Union trade mark in one Member State only or even in one city may be geographically sufficient (15/07/2015, T-398/13, TVR ITALIA (fig.) / TVR et al., EU:T:2015:503, § 57). Therefore, in view of the evidence provided, the Opposition Division considers that it relates to the relevant territory of the European Union.

As regards the time of use, all of the evidence provided is dated within the relevant period.

Furthermore, the documents filed provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency 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.

According to Article 15(1), second subparagraph, point (a) EUTMR, the following will also constitute use within the meaning of paragraph 1: use of the European Union trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor. When examining the use of an earlier registration for the purposes of Article 42(2) and (3) EUTMR, Article 15 may be applied by analogy to assess whether or not the use of the sign constitutes genuine use of the earlier mark as far as its nature is concerned.

In the present case, some of the evidence refers to the name ‘miogusto’ and some to the sign . The representation of the sign  is acceptable to constitute a satisfactory use of the earlier word mark ‘miogusto’ since the additional elements either occupy a secondary position within the sign because they are written in a much smaller size underneath the name ‘miogusto’ or because they are merely commonly used additions. The stylised typeface used to represent the name ‘miogusto’ is not particularly elaborate either and will not detract the attention of the consumer away from the element it seems to embellish.

In view of the above, the Opposition Division considers that the evidence does show use of the sign as registered within the meaning of Article 15(1), second subparagraph, point (a) EUTMR.

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

In the present case, the evidence shows genuine use of the trade mark for wholesale and retail services in relation to foodstuffs, non-alcoholic and alcoholic beverages, including within the framework of e-commerce; collation and presentation of foodstuffs, non-alcoholic and alcoholic beverages, for others, to enable customers for view and purchase these goods in wholesale outlets, retail outlets, via mail order catalogues or with the aid of electronic media, in particular via the Internet or other telecommunications networks. For the remaining order placement, delivery services and invoice management, including within the framework of e-commerce, no evidence was filed to show the use of the trade mark with these services. Indeed, although these services are ancillary to the running of any business, the Explanatory Note of Class 35 specifies that services in Class 35 mainly include services rendered by persons or organizations to help in the working or management of a commercial undertaking. Consequently, no evidence showing that the order placement, delivery services and invoice management, including within the framework of e-commerce has been provided to third parties has been submitted. The evidence provided refer to the own managerial and administrative task of the company Miogusto GmbH.

Therefore, the Opposition Division will only consider the wholesale and retail services in relation to foodstuffs, non-alcoholic and alcoholic beverages, including within the framework of e-commerce; collation and presentation of foodstuffs, non-alcoholic and alcoholic beverages, for others, to enable customers for view and purchase these goods in wholesale outlets, retail outlets, via mail order catalogues or with the aid of electronic media, in particular via the Internet or other telecommunications networks in its further examination of the opposition.

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 and services

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

Class 35: Wholesale and retail services in relation to foodstuffs, non-alcoholic and alcoholic beverages, including within the framework of e-commerce; collation and presentation of foodstuffs, non-alcoholic and alcoholic beverages, for others, to enable customers for view and purchase these goods in wholesale outlets, retail outlets, via mail order catalogues or with the aid of electronic media, in particular via the Internet or other telecommunications networks.

The contested goods and services are the following:

Class 33: Alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails; alcoholic beverages based on grapes and/or grape extracts.

Class 35: Advertising and publicity; advertising agency and sales promotion; dissemination of advertising and promotional materials, including via the internet, in the field of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; sales promotion of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; commercial intermediary services relating to the purchase and sale of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; import and export of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; organization of fairs and exhibitions for commercial and/or advertising purposes; trading information; public relations; execution of advertising campaigns relating to trade fairs, to exhibitions and to congresses; merchandising; business management; business administration; administrative services; the aforesaid services whether or not conducted through the internet.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services.

The terms ‘in particular’ and ‘including’, used in the applicant’s and opponent’s list of services, indicates that the specific services are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (see the judgment of 09/04/2003, T-224/01, Nu-Tride, EU:T:2003:107).

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

The relevant factors relating to the comparison of the goods or services include, inter alia, the nature and purpose of the goods or services, the distribution channels, the sales outlets, the producers, the method of use and whether they are in competition with each other or complementary to each other.

Contested goods in Class 33

The contested alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails; alcoholic beverages based on grapes and/or grape extracts are similar to a low degree to the opponent’s retail services in relation to non-alcoholic and alcoholic beverages, including within the framework of e-commerce. Indeed, retail services concerning the sale of particular goods or of a category of goods are similar to a low degree to those particular goods or to goods falling under the category of goods just mentioned. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Contested goods in Class 35

The contested advertising and publicity; advertising agency and sales promotion; dissemination of advertising and promotional materials, including via the internet, in the field of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; sales promotion of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; organization of fairs and exhibitions for commercial and/or advertising purposes; trading information; public relations; execution of advertising campaigns relating to trade fairs, to exhibitions and to congresses; merchandising; the aforesaid services whether or not conducted through the internet include, as a broader category, or overlap with, the opponent’s collation and presentation of foodstuffs, non-alcoholic and alcoholic beverages, for others, to enable customers for view and purchase these goods in wholesale outlets, retail outlets, via mail order catalogues or with the aid of electronic media, in particular via the Internet or other telecommunications networks. Since the Opposition Division cannot dissect ex officio the broad categories of the contested services, they are considered identical to the opponent’s services.

The contested commercial intermediary services relating to the purchase and sale of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; the aforesaid services whether or not conducted through the internet are services part of the product distribution channel that allow the product to go from the manufacturer to the end user through agents, wholesalers, distributors or retailers. Therefore, they include, as a broader category, the opponent’s wholesale and retail services in relation to foodstuffs, non-alcoholic and alcoholic beverages, including within the framework of e-commerce. Since the Opposition Division cannot dissect ex officio the broad category of the contested services, they are considered identical to the opponent’s services.

The contested import and export of alcoholic beverages (except beers) including wines, sparkling wines, limo secco, spritz and cocktails, alcoholic beverages based on grapes and/or grape extracts; the aforesaid services whether or not conducted through the internet are services that relate to the movement of goods but that are not considered to be sales services. These services do not relate to the actual retail or wholesale of the goods. As regards, the contested business management; business administration; administrative services; the aforesaid services whether or not conducted through the internet they are services usually rendered by specialist companies such as business consultants. These companies gather information and provide tools and expertise to enable their customers to carry out their business or provide businesses with the necessary support to acquire, develop and expand market share. The services include activities such as business research and assessments, cost and price analyses, organisational consultancy and any consultancy, advisory and assistance activity that may be useful in the management of a business, such as advice on how to efficiently allocate financial and human resources, improve productivity, increase market share, deal with competitors, reduce tax bills, develop new products, communicate with the public, market products, research consumer trends, launch new products, create a corporate identity, etc. To that extent, these services are dissimilar to any of the opponent’s services that are rather related to wholesale, retail and promotion services.

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 and services found to be identical or similar to a low degree are directed at the public at large and at business customers with specific professional knowledge or expertise.

The public’s degree of attentiveness may vary from average to high, depending on the price, specialised nature, or terms and conditions of the purchased goods and services.

3. The signs

miogusto
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).

The unitary character of the European Union trade mark means that an earlier European Union trade mark can be relied on in opposition proceedings against any application for registration of a European Union trade mark that would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (18/09/2008, C-514/06 P, Armafoam, EU:C:2008:511, § 57). This applies by analogy to international registrations designating the European Union. Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

The signs are meaningless and distinctive for a significant part of the relevant public, namely for the non-Italian-speaking part of the public. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The earlier mark is a word mark consisting of the verbal element ‘miogusto. In the case of word marks, it is the word as such that is protected and not its written form. Therefore, it is irrelevant whether the contested sign is represented in upper or lower characters.

The contested sign is a figurative mark consisting of a black vertical background in the middle of which the verbal element ‘ilmiogusto’ is represented in small white letter case, except for the letters ‘mio’ that are in grey. The letters ‘us’ are underlined in white.

The applicant argues that the verbal element in the contested sign will be read the way around, however, although the sign as a whole has no meaning for the English-speaking part of the public, consumers will still try to find the easiest and the more natural way to pronounce it. The way the verbal element is coloured already gives the consumer an idea on how to read it. Indeed, the Italian definite article ‘il’ is clearly detached from the following word since different colours are used to represent them. Furthermore, the Italian definite article ‘il’ is considered to be a very basic Italian word that will be recognized as such by the part of the relevant public and used as the starting point for the rest of the lecture. Consequently, the Opposition Division considers that it is safe to assume that the contested sign will be read ‘ilmiogusto’ and not the other way round.

The contested sign also contains a figurative element of a purely decorative nature which is, therefore, less distinctive than the verbal element.

In any event, in this respect, it should be noted that when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T-312/03, Selenium-Ace, EU:T:2005:289, § 37).

The signs have no elements that could be considered clearly more dominant than other elements.

Visually, the signs coincide in the sequence of letters ‘miogusto’ which constitutes the sole element of the earlier mark. However, they differ in the two first letters ‘il’ of the contested sign, in its colours and in its black background that find no equivalents in the earlier mark. However, taking into consideration that the colours and the background will not have as much impact on consumers for the reasons explained above, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters ‘miogusto’ and only differs in the sound of the additional letters ‘il’ placed at the beginning of the contested sign. In addition to the fact that the signs coincide in the sound of eight of their letters, as already explained, ‘il’ will be recognized by the relevant part of the public as an Italian definite article only introducing the rest of the verbal element. As such, its distinctive role is reduced with respect to the rest of the verbal element. In view of the limited impact that the differentiating letters will have on consumers, the signs are aurally highly similar.

Conceptually, neither of the signs has a meaning as a whole. Although consumers will perceive the meaning of the Italian article ‘IL’, since they will not understand the rest of the sign, it is impossible for them to know to what this article is referring to. The attention of the relevant public will therefore be attracted by the additional fanciful verbal elements, which have no meaning.

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 services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

According to settled case-law, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (29/09/1998, C-39/97, Canon, EU:C:1998:442, §16).

The contested goods and services are partly identical, partly similar to a low degree and partly dissimilar to the opponent’s services.

While it is true that the signs differ in some aspects, the coincidences largely prevail. The differentiating elements are considered to have a very limited impact on the relevant part of the public either because of their decorative role or, in the case of the Italian definite article ‘il’, because it is less distinctive than the rest of the verbal element.

Furthermore, 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).

Also, evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

Likelihood of confusion covers situations where the consumer directly confuses the trade marks themselves, or where the consumer makes a connection between the conflicting signs and assumes that the goods/services covered are from the same or economically linked undertakings.

In view of the foregoing, and taking into account all the relevant circumstances of the case, also the imperfect recollection principle and the interdependence principle between the relevant factors, the Opposition Division concludes that the signs are sufficiently similar to induce a likelihood of confusion on the part of the relevant public in relation to identical and similar to a low degree goods and services.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well-founded on the basis of the opponent’s European Union trade mark registration. As stated above in section c) of this decision, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application.

It follows from the above that the contested trade mark must be rejected for the goods and services found to be identical and similar to a low degree to those of the earlier trade mark.

The rest of the contested services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these services cannot be successful.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

Since the opposition is successful only for part of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Martina GALLE

Sandra IBAÑEZ

Pedro JURADO

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.