OPPOSITION DIVISION
OPPOSITION No B 2 673 880
Food Commerce SRL, Via Livatino, 6/III, 84083 Castel San Giorgio (SA), Italy
(opponent).
a g a i n s t
Albert Folguera, C/ Còrsega 270 àtic, 08008 Barcelona, Spain, Agroliber, Comes
de Guem 7, Escaldes Engordany 700, Andorra (applicants).
On 14/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 673 880 is upheld for all the contested goods.
2. European Union trade mark application No 15 041 387 is rejected in its entirety.
3. The applicant bears the costs, fixed at EUR 350.
REASONS
The opponent filed an opposition against all the goods of European Union trade mark
application No 15 041 387 for the figurative mark . The opposition is
based on European Union trade mark registration No 8 652 001 for the figurative
mark . The opponent invoked Article 8(1)(a) and (b) EUTMR.
Preliminary remarks
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)
2017/1431, subject to certain transitional provisions. All the references in this
decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to
the Regulations currently in force, except where expressly indicated otherwise.
Decision on Opposition No B 2 673 880 page: 2 of 12
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, now Article 47(2) and (3) EUTMR), 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.
The applicant requested that the opponent submit proof of use of the trade mark on
which the opposition is based, namely the European Union trade mark registration
No 8 652 001.
The contested application was published on 04/03/2016. 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 04/03/2011 to 03/03/2016 inclusive.
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.
Furthermore, the evidence must show use of the trade mark for the goods on which
the opposition is based, namely the following:
Class 29: Meat, fish, poultry and game; meat extracts; preserved, frozen, dried
and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk
products; edible fats and oils.
Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour
and preparations made from cereals, bread, pastry and confectionery, ices; honey,
treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices;
ice.
According to Rule 22(3) EUTMIR (in the version in force at the moment of filing the
request for proof of use), 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 or
services in respect of which it is registered and on which the opposition is based.
On 10/03/2017, in accordance with Rule 22(2) EUTMIR (in the version in force at the
moment of filing the request for proof of use), the Office gave the opponent until
15/05/2017 to submit evidence of use of the earlier trade mark. On 19/10/2016 and
on 15/05/2017, therefore, 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 the following:
Decision on Opposition No B 2 673 880 page: 3 of 12
25 Invoices referring to the sale of the opponent’s goods for the export purposes
together with related documents, during the period 2011-2015 to, inter alia,
Latvia, but also to countries located outside the EU, namely, China, Canada,
South Korea etc. The opponent’s trade mark appears in those documents in
relation to pasta, tomato based sauces, semolina and canned tomatoes. The
invoices bear important amounts which correspond to the sale of considerable
volume of the above-mentioned goods.
Numerous invoices related to the opponent’s participation in relevant European
foods fairs: ‘Sial’ Paris (France), ‘Anuga’ Cologne (Germany), Ife London
(United Kingdom), etc. The opponent’s mark is visible on the relevant
documentation. These documents refer to the relevant time.
4 invoices referring to the sale of the opponent’s olive oil under the opponent’s
trade mark in the period 2014-2016. The opponent also added the invoice
addressed to the Italian graphics company being in charge of the creation of
the opponent’s label for olive oil.
1 example of a label to be affixed on the opponent’s olive oil.
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).
In the context of Article 10(3) EUTMDR (former Rule 22(3) EUTMIR, in force before
01/10/2017), the expression ‘nature of use’ includes evidence of use of the sign in
accordance with its function, of use of the mark as registered, or of a variation thereof
according to Article 18(1), second subparagraph, point (a) EUTMR, and of its use for
the goods and services for which it is registered.
According to Article 18(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 that 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 47(2) and (3)
EUTMR, Article 18 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.
Therefore, the use of the mark in a form different from the one registered still
constitutes use of the trade mark as long as the differing elements do not alter the
distinctive character of the trade mark, and regardless of whether or not the trade
mark in the form as used is also registered in the name of the proprietor.
The purpose of this provision is to allow its proprietor to make variations in the sign
which, without altering its distinctive character, enable it to be better adapted to the
marketing and promotion requirements of the goods or services concerned
(23/02/2006, T-194/03, EU:T:2006:65, § 50).
Decision on Opposition No B 2 673 880 page: 4 of 12
In the present case the evidence shows the earlier mark mainly as a figurative mark
. . In r. .
I n
In relation to the ‘opponent’s products (pasta, tomato based sauces, semolina and
canned tomatoes, olive oil) as regards the curled flags of Italy placed above and
below the earlier figurative mark it should be noted that the Article 18(1) EUTMR
does not preclude the possibility of the trade mark’s proprietor adding further
(decorative or descriptive) elements. The two curled Italian flags do not possess any
distinctive character in relation to the products at hand which are commonly known to
be food specialities originating from Italy. The verbal element ‘OTTIMA’ still plays a
central role within the earlier mark principally due its position in the sign. The
remaining figurative elements present in the mark used by the opponent occupy
merely an ancillary position in the overall impression and do not present any
originality in relation to usual commercial use.
Therefore, in the case at hand, the evidence filed shows the use of the earlier mark in
its acceptable variation and does not alter their distinctive character within the
meaning of Article 18(1)(a) EUTMR.
According to Article 18(1)(b) EUTMR, the affixing of the European Union trade mark
to goods or to the packaging thereof in the Union solely for export purposes also
constitutes use within the meaning of Article 18(1) EUTMR. The mark has to be used
(i.e. affixed to goods or their packaging) in the relevant market — that is, the
geographical area where it is registered.
In the present case the earlier mark has been affixed in Italy, therefore within the
European Union.
If the earlier mark is a European Union mark, it must be used ‘in the Union’ (Articles
18(1) and 47(2) EUTMR). Following ‘Leno Merken’, Article 18(1) EUTMR must be
interpreted as meaning that the territorial borders of the Member States should be
disregarded when assessing whether a EUTM has been put to ‘genuine use’ in the
Union (paragraph 44).
In territorial terms and in view of the unitary character of the EUTM, the appropriate
approach is not that of political boundaries but of market(s). Moreover, one of the
aims pursued by the EUTM system is to be open to businesses of all kinds and sizes.
Therefore, the size of an undertaking is not a relevant factor to establish genuine use
As the Court indicated in ‘Leno Merken’, it is impossible to determine a priori and in
the abstract what territorial scope should be applied in order to determine whether
the use of the mark is genuine or not (paragraph 55). All the relevant facts and
circumstances must be taken into account, including the characteristics of the market
concerned, the nature of the goods or services protected by the trade mark and the
territorial extent and scale of the use as well as its frequency and regularity
(paragraph 58). Use of an EUTM in the UK (15/07/2015, T-398/13, TVR ITALIA (fig.) /
TVR et al., EU:T:2015:503, § 57) or even in London and its immediate surroundings
may be geographically sufficient (30/01/2015, T-278/13, now, EU:T:2015:57).
Decision on Opposition No B 2 673 880 page: 5 of 12
The evidence, in particular, the invoices together with the related export
documentation show that the opponent’s trade mark has been affixed in Italy. This
can be also inferred from the language of the documents (Italian) and the currency
(EUR) mentioned on the invoices.
In the present case, the Opposition Division is of the opinion that the genuine use for
the opponent’s goods in the territory of Italy is sufficient to constitute genuine use in
the European Union, taking into account not only its territorial extent but also the size
of the relevant market (the EU), as well as the fairly large sales demonstrated by the
opponent in such a competitive market.
Furthermore, it should also be noticed that the territorial scope of the genuine use in
the present case has not been disputed by the applicant.
Most of the evidence is dated within the relevant period.
The documents filed, in particular numerous invoices together with the relevant
exportation documents cover the relevant time and relate to the goods in question.
They show the opponent’s commercial activities referring to the frequent sale of
pasta, semolina, tomato based sauces, canned tomatoes for the export purposes
during the period 2011-2015 to, inter alia, Latvia, but also to countries located outside
the EU, namely, China, Canada, South Korea etc. These invoices bear important
amounts which correspond to the sale of considerable volume of the above-
mentioned goods. The additional documentation referring to the opponent’s activities
in relation to the sale of ‘olive oil’ is relevant and shows that the opponent seriously
tried to acquire a commercial position in the relevant market. In relation to all the
above-mentioned goods, the volume of sales, in relation to the period and frequency
of use, was deemed to be significant enough, not to be concluded as merely token,
minimal or notional for the sole purpose of preserving the rights conferred by the
mark.
The material analysed above in conjunction with the invoices related to the
opponent’s participation in the most important European foods fairs: ‘Sial’ Paris
(France), ‘Anuga’ Cologne (Germany), Ife London (United Kingdom), etc. provide
sufficient information on actual use for some of the goods claimed and it does reach
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 47(2) EUTMR, if the earlier trade mark has been used in relation
to only some 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
those 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
Decision on Opposition No B 2 673 880 page: 6 of 12
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, § 45 and 46).
In the present case, the evidence proves use only for canned tomatoes, olive oil in
Class 29 which can be considered to form an objective subcategory of the
opponent’s preserved, frozen, dried and cooked fruits and vegetables and edible fats
and oils. Furthermore, the goods like pasta, semolina, tomato based sauces can be
considered to form an objective subcategory of the opponent’s flour and preparations
made from cereals and sauces (condiments) in Class 30. Therefore, the Opposition
Division considers that the evidence shows genuine use of the trade mark only for
canned tomatoes, olive oil in Class 29 and pasta, semolina, tomato based sauces in
Class 30.
The evidence submitted by the opponent does not show the genuine use in relation
to the remaining goods claimed by the opponent. The material filed with the Office
does not refer at all to them.
Consequently, the Opposition Division will only consider the abovementioned goods
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.
Decision on Opposition No B 2 673 880 page: 7 of 12
a) The goods
The goods on which the opposition is based are the following:
Class 29: Canned tomatoes, olive oil.
Class 30: Pasta, semolina, tomato based sauces.
The contested goods are the following:
Class 29: Olive oil; olive oil for food; extra-virgin olive oil; edible oils; edible oils
for use in cooking foodstuffs; spiced oils; hardened oils [hydrogenated oil for food];
hydrogenated oils for food; cooking oils; hardened oils for food; vegetable oils for
food; edible oils for glazing foodstuffs; edible fats; cooking fats; vegetable fats for
food.
Class 30: Vinegar; wine vinegar; flavoured vinegar.
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 29
The contested olive oil is identically mentioned in the opponent’s specification.
The contested olive oil for food; extra-virgin olive oil are identical to the opponent’s
olive oil because they are synonyms.
The contested edible oils; edible oils for use in cooking foodstuffs; vegetable oils for
food; cooking oils include as broader categories the opponent’s olive oil. Since the
Opposition Division cannot dissect ex officio the broad categories of the contested
goods, they are considered identical to the opponent’s goods.
The contested spiced oils can be easily made/infused using for example olive oils
and dried spices. It’s a type of oil for food and, therefore, it overlaps with the
opponent’s olive oil. They are, thus, identical.
The contested edible fats; cooking fats; vegetable fats for food also known
as triglycerides, are esters of three fatty acid chains and the alcohol glycerol. These
goods are considered similar to high degree to the opponent’s olive oil, as they have
the same purpose and can coincide in end user. Furthermore they are in competition.
The contested hardened oils [hydrogenated oil for food]; hydrogenated oils for food;
hardened oils for food; edible oils for glazing foodstuffs are similar to a high degree to
the opponent’s olive oil as they are all edible oils that could be directly consumed or
consumed after simple preparation. These goods can coincide in producers, end
consumers, method of use and distribution channels.
Decision on Opposition No B 2 673 880 page: 8 of 12
Contested goods in Class 30
The contested vinegar; wine vinegar; flavoured vinegar refer to variations of the
same cooking ingredient produced by the fermentation of ethanol by acetic acid
bacteria. They have some relevant points in common with the opponent’s tomato
based sauces. These goods may share the same purpose, the end users and
distribution channels. Furthermore, they may be produced by the same undertaking
and may be in competition. Consequently they are similar to a high degree.
b) Relevant public — degree of attention
The average consumer of the category of products concerned is deemed to be
reasonably well informed and reasonably observant and circumspect. It should also
be borne in mind that the average consumer’s degree of attention is likely to vary
according to the category of goods or services in question.
In the present case, the goods found to be identical or similar are directed at the
public at large with a normal degree of distinctiveness.
c) The signs
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). Therefore, a likelihood of confusion for only part of the
relevant public of the European Union is sufficient to reject the contested application.
Since the signs in question are composed of the terms which are weak in certain
territories like Italy, Spain and Portugal, the Opposition Division finds it appropriate to
focus the comparison of the signs on the territories where both signs are
meaningless, such as Poland and Germany.
Decision on Opposition No B 2 673 880 page: 9 of 12
Both marks are figurative marks.
The earlier mark is composed of the verbal element ‘Ottima’, written partly in italic
and partly in standard script in red and placed against a white background inside a
black circle with a double contour. Furthermore, the letters ‘ttima’ are underlined with
a thick red line and the dot forming the letter ‘i’ is depicted in black.
The contested sign consists of the verbal element ‘Ottimo’, written in title case, rather
standard letters in green against a white background inside of a rectangular shape.
The verbal element is accompanied on its both sides by two branches with green and
orange leaves. There are two parallel lines in orange placed above and below the
rectangular shape.
As mentioned above, the terms ‘Ottima’ and ‘Ottimo’ are meaningless for the relevant
public in the relevant territories.
As regards, the figurative elements present in both signs (circle with a double
contour, branches with leaves, stylisation of letters and the remaining figurative
shapes present in both signs), account must be taken 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; decisions of 19/12/2011,
R 233/2011-4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011-5,
Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). Therefore, in view of the
composition of the sign, the verbal elements are the ones that will be used to refer to
them.
The marks in question have no elements that could be considered clearly more
distinctive or dominant (visually eye-catching) than other elements.
Visually and aurally, the signs coincide in majority of the letters present in the signs,
namely ‘Ottim-’. They differ in their last letter ‘a’ of the earlier mark versus ‘o’ of the
contested sign as well as their figurative elements (only visually). Taking into account
the abovementioned principle, the figurative elements present in both signs will be
less relevant or important than the coincidence in the initial and at the same time the
bigger part of the signs. In this regard it should be noticed that consumers generally
tend to focus on the beginning of a sign when being confronted with a trade mark.
This is justified by the fact that 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 similar to an average degree and aurally similar to a
high degree because their last letters, the vowels ‘o’ and ‘a’ usually disperse in the air
when being pronounced and, consequently, their impact is less from the phonetic
perspective.
Conceptually, neither of the signs has a meaning for the public in the relevant
territory. Since a conceptual comparison is not possible, the conceptual aspect does
not influence the assessment of the similarity of 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.
Decision on Opposition No B 2 673 880 page: 10 of 12
d) 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 distinctiveness of the earlier 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.
e) Global assessment, other arguments and conclusion
According to the case-law of the Court of Justice, in determining the existence of
likelihood of confusion, trade marks have to be compared by making an overall
assessment of the visual, aural and conceptual similarities between the marks. The
comparison ‘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, § 22 et seq.). Likelihood of confusion must be assessed
globally, taking into account all the circumstances of the case.
The global assessment of 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).
As concluded above, the contested goods are identical and similar to various
degrees to the ones covered by the earlier mark and they target the public at large
with an average degree of attentiveness.
In addition, account should also be taken of the fact that the average consumer only
rarely has the chance to make a direct comparison between the different marks and
must place his trust in the imperfect picture of them that he has kept in his mind
(22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323).
In the present case the signs are considered visually similar to an average degree
and aurally similar to a high degree. In particular, the marks coincide in their initial
and bigger parts ‘OTTIM-’. Consequently, these coinciding initial five letters will catch
immediately the attention of the relevant public. The signs do not convey any concept
and therefore, the conceptual aspect does not influence the comparison of the signs.
The differentiating letters ‘a’ of the earlier mark versus ‘o’ of the contested sign are
placed in their final part, which make them less noticeable to the relevant public.
Furthermore, the figurative elements present in both signs are also less important
than the coincidence in the initial part of their verbal elements, ‘OTTIM-’. As a result,
these elements are not sufficient to exclude a likelihood of confusion between the
marks in question.
Considering all the above, the Opposition Division finds that there is a likelihood of
confusion on the Polish- and German-speaking part of the public and, therefore, the
Decision on Opposition No B 2 673 880 page: 11 of 12
opposition is well founded on the basis of the opponent’s European Union trade mark
registration No 8 652 001. 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 all the
contested goods.
Since the opposition is fully successful on the basis of the ground of Article 8(1)(b)
EUTMR, there is no need to further examine the other ground of the opposition,
namely Article 8(1)(a) EUTMR.
COSTS
According to Article 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party.
Since the applicant is the losing party, it must bear the opposition fee as well as the
costs incurred by the opponent in the course of these proceedings.
According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR (former
Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, in force before 01/10/2017), 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. In
the present case, the opponent did not appoint a professional representative within
the meaning of Article 120 EUTMR and therefore did not incur representation costs.
The Opposition Division
Gueorgui IVANOV Monika CISZEWSKA Marzena MACIAK
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 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 for
appeal must be filed within four months of the same date. The notice of appeal will be
deemed to have been 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 Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
Decision on Opposition No B 2 673 880 page: 12 of 12
deemed to have been filed only when the review fee of EUR 100 (Annex I A(33)
EUTMR) has been paid