OPPOSITION No B 2 762 279

Medion AG, Am Zehnthof 77, 45307 Essen, Germany (opponent), represented by Becker & Müller, Turmstr. 22, 40878 Ratingen, Germany (professional representative)

a g a i n s t

QuantifiCare S.A., 1180 route des Dolines, Bâtiment Athena B, 06560 Valbonne, France (holder).

On 18/09/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 762 279 is upheld for all the contested goods and services, namely:

Class 9:        Photographic, cinematographic, optical, measuring, apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic recording media, optical or sound recording disks; compact disks, DVDs and other digital recording media; data processing equipment, computers; electronic tablets, smartphones, e-book readers; game software; software (recorded programs); computer peripheral devices; electric batteries; 3D spectacles; memory cards or integrated circuit cards; software; image analysis tools; measuring instruments; apparatus for recording, transmission, reproduction of images; digital photography; 3D reconstruction software; photogrammetry stereo software; magnetic recording media; digital image storage media; computers; digital cameras; 3D photographic apparatus; thermal cameras; imaging devices.

Class 42:        Design and development of computers and software; development (design), installation, maintenance, updating or rental of software; computer programming; computer system analysis; design of computer systems; consultancy in the design and development of computers; digitization of documents; software as a service (SaaS); cloud computing; information technology (IT) consultancy; hosting of servers; electronic data storage; scientific and technical research; design and development of computers and software; development of image analysis methods; software development; computer programming; consultancy relating to computers, digital cameras, image acquisition systems, data transmission systems; design of client-server systems; hosting of servers; hosting of servers; electronic data storage.

2.        International registration No 1 276 946 is refused protection in respect of the European Union for all of the contested goods and services. It may proceed for the remaining goods and services.

3.        The holder bears the costs, fixed at EUR 620.

REASONS:

The opponent filed an opposition against some of the goods and services of international registration designating the European Union No 1 276 946, namely against some of the goods and services in Classes 9 and 42. The opposition is based on European Union trade mark registration No 4 585 295. The opponent invoked Article 8(1)(b) EUTMR.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

1. The goods and services

The goods and services on which the opposition is based are, inter alia, the following:

Class 9:        Magnetic encoders; magnetic data carriers; optical data media; data-processing apparatus; optical character readers; writing and/or reading implements (data processing); magnetic data carriers; mouse (data processing equipment); optical data carriers; disc exchangers (for computers); scanners [data processing equipment]; memories for data processing installations, processors (central processing units); compact discs (read-only memory); compact discs (audio-video); computers; recorded computer programs; computer software [recorded]; games programs for computers; computer operating programs (recorded); computer peripheral devices; computer programs (downloadable); computer keyboards; printers for use with computers; wrist rests for use with computers; interfaces [for computers]; laptops (computers); floppy disc drives; monitors for computers; monitors (computer hardware), navigation apparatus (computer programs) for vehicles (onboard computers); notebooks (computers); computer peripheral devices; computer programs; computer software (recorded); computer game programs; keyboards for computers; make-up removing appliances, electric; grids for electric accumulators, chargers for electric accumulators, plates for electric accumulators, electric accumulators; alarm bells, electric; connection boxes (electricity), display apparatus (electric); electronic display panels; batteries, electric; flat irons, electric; theft prevention installations, electric; electric wires; electrodynamic apparatus for the remote control of railway points; electric cables; electric capacitors; electromagnetic coils; electronic publications [downloadable]; electronic pens [visual display units]; discharge tubes, electric, other than for lighting; anti-interference devices (electricity); batteries, electric, for vehicles; electrodynamic signal remote control apparatus; photocopiers (photographic, electrostatic, thermic); inductance coils (electricity); electric devices for attracting and killing insects; wire connectors (electricity); door bells (electric); chargers for electric batteries; hair-curlers, electrically heated; welding apparatus, electric; soldering irons, electric; solenoid valves (electromagnetic switches); measuring devices, electric; electrically heated hair curlers; locks (electric); transmitters of electronic signals; electronic security tags for goods; socks, electrically heated; electronic pens (visual display units); buzzers electric; electronic pocket translators; electronic organisers; electric door bells; door openers, electric; door closers, electric; monitoring apparatus, electric; compact discs (audio-video); receivers (audio and video); tone arms for record players; head cleaning tapes [recording]; tone arms for record players; sound recording apparatus; tape-recorders; sound locating instruments; sound carriers; sound transmitting apparatus; sound amplifiers; sound-reproducing apparatus; amusement apparatus adapted for use with television receivers; temperature indicators; video telephones; loudspeaker boxes; letter scales; compact disc players; television apparatus; telephone apparatus; motion picture cameras; film cutting apparatus; radiotelephony sets; signalling bells; altimeters; cassette players; compasses; headphones; laser pointers (luminous pointers); microphones; mobile telephones; modems; navigational instruments; lenses (optics); mouse pads (mouse mats); plotters; projection apparatus; projection screens; slide projectors, radios; smartcards (cards with integrated circuits); video games adapted for use with television receivers only; walkie talkies; video cameras; video recorders; safety helmets for sports; none of the aforesaid goods being or featuring educational and/or entertainment content intended for general circulation; the aforementioned goods exclusive of board game programs for computers, computer board games and video board games for use with television receivers only, electronic board games, video board games for a connection to a television, board games software, cards/discs/tapes/wires/circuits for bearing or bearing board games and/or games software and/or arcade board games, board gaming machines including slot machines.

Class 42:        Computer programming; conversion of data or documents from physical to electronic media; hiring out data-processing equipment; recovery of computer data; updating of computer software; computer consultancy; copying of computer programs; updating of computer software; computer software design; rental of computer software; consultancy in the field of computers; recovery of computer data; installation of computer programs, maintenance of computer software; computer systems design; systems analysis; design of computer systems; computer software design; design of computer systems; installation of computer programs; conversion of computer programmes and data (other than physical alteration); copying of computer programs; computer software rental; maintenance of computer software; recovery of computer data; conversion of data or documents from physical to electronic media; design and maintenance of websites for third parties.

The contested goods and services are the following:

Class 9:        Photographic, cinematographic, optical, measuring, apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic recording media, optical or sound recording disks; compact disks, DVDs and other digital recording media; data processing equipment, computers; electronic tablets, smartphones, e-book readers; game software; software (recorded programs); computer peripheral devices; electric batteries; 3D spectacles; memory cards or integrated circuit cards; software; image analysis tools; measuring instruments; apparatus for recording, transmission, reproduction of images; digital photography; 3D reconstruction software; photogrammetry stereo software; magnetic recording media; digital image storage media; computers; digital cameras; 3D photographic apparatus; thermal cameras; imaging devices.

Class 42:        Design and development of computers and software; development (design), installation, maintenance, updating or rental of software; computer programming; computer system analysis; design of computer systems; consultancy in the design and development of computers; digitization of documents; software as a service (SaaS); cloud computing; information technology (IT) consultancy; hosting of servers; electronic data storage; scientific and technical research; design and development of computers and software; development of image analysis methods; software development; computer programming; consultancy relating to computers, digital cameras, image acquisition systems, data transmission systems; design of client-server systems; hosting of servers; hosting of servers; electronic data storage.

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 9

In the comparison below, the opponent's goods in Class 9 will be understood as not being or featuring educational and/or entertainment content intended for general circulation; the aforementioned goods exclusive of board game programs for computers, computer board games and video board games for use with television receivers only, electronic board games, video board games for a connection to a television, board games software, cards/discs/tapes/wires/circuits for bearing or bearing board games and/or games software and/or arcade board games, board gaming machines including slot machines.

The contested photographic apparatus and instruments include, as a broader category, or overlap with, the opponent’s photocopiers (photographic, electrostatic, thermic); none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested data processing equipment; electronic tablets include, as broader categories, or overlap with, the opponent’s computers; none of the aforesaid goods […]. 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 computers (listed twice) include, as a broader category, the opponent’s computers; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested cinematographic apparatus and instruments include, as a broader category, the opponent’s motion picture cameras; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested optical apparatus and instruments include, as a broader category, the opponent’s optical character readers; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested measuring apparatus and instruments and measuring instruments include, as broader categories, the opponent’s measuring devices, electric; none of the aforesaid goods […]. 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 apparatus for recording, transmission or reproduction of sound or images and apparatus for recording, transmission, reproduction of images include, as broader categories, the opponent’s video cameras; none of the aforesaid goods […]. 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 magnetic recording media (listed twice) are devices used for the storage of data on a magnetised medium. These goods include, as a broader category, or overlap with, the opponent’s magnetic data carriers; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested optical or sound recording disks; compact disks, DVDs and other digital recording media are included in the broad category of, or overlap with, the opponent’s optical data media; none of the aforesaid goods […]. Therefore, they are identical.

The contested smartphones overlap with the opponent’s mobile telephones; none of the aforesaid goods […]. Therefore, they are identical. 

The contested e-book readers overlap with the opponent’s reading implements (data processing); none of the aforesaid goods […]. Therefore, they are identical.

The contested game software overlap with the opponent’s games programs for computers; none of the aforesaid goods being or featuring educational and/or entertainment content intended for general circulation; the aforementioned goods exclusive of board game programs for computers, computer board games and video board games for use with television receivers only, electronic board games, video board games for a connection to a television, board games software, cards/discs/tapes/wires/circuits for bearing or bearing board games and/or games software and/or arcade board games, board gaming machines including slot machines. Although the opponent’s list of goods explicitly excludes board games and goods featuring educational and/or entertainment content intended for general circulation, the contested goods still cover other types of game software. Therefore, they are identical.

The contested software (recorded programs) includes, as a broader category the opponent’s recorded computer programs; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested computer peripheral devices include, as a broader category, the opponent’s mouse (data processing equipment); none of the aforesaid goods […]. Considering that the wording ‘none of the aforesaid goods […]’ does not affect the scope of protection as regards mouse (data processing equipment) and since the Opposition Division cannot dissect ex officio the broad category of the contested goods, these goods are considered identical.

The contested electric batteries and the opponent’s batteries, electric; none of the aforesaid goods […] cover the same goods. Therefore, they are identical.

The contested memory cards are included in the broad category of, or overlap with, the opponent’s magnetic data carriers; none of the aforesaid goods […]. Therefore, they are identical.

The contested integrated circuit cards include, as a broader category, the opponent’s smartcards (cards with integrated circuits); none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested software includes, as a broader category the opponent’s computer software [recorded]; none of the aforesaid goods […]. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested image analysis tools overlap with the opponent’s computers; none of the aforesaid goods […] to the extent that image analysis largely contains the field of computer or machine vision, and medical imaging, and makes heavy use of pattern recognition, digital geometry, and signal processing. Therefore, they are identical.

The contested digital photography includes all digital photographic devices such as digital cameras protected by the opponent’s apparatus for recording, transmission or reproduction of sound or images; none of the aforesaid goods […].Therefore, the contested goods are included in, or overlap with, the opponent’s goods. These goods are identical.

The contested 3D reconstruction software and photogrammetry stereo software overlap with the opponent’s computer software [recorded]; none of the aforesaid goods […]. Therefore, they are identical.

The contested digital image storage media overlap with the opponent’s magnetic data carriers; none of the aforesaid goods […]. Therefore, they are identical.

The contested digital cameras; 3D photographic apparatus; thermal cameras; imaging devices are included in, or overlap with, the opponent’s apparatus for recording, transmission or reproduction of sound or images; none of the aforesaid goods […].Therefore, these goods are identical.

The contested 3D spectacles are similar to the opponent’s television apparatus; none of the aforesaid goods […]. Indeed, these goods may coincide in producers, end users and distribution channels. Moreover, in some cases, they are complementary to the extent that some of the opponent’s television apparatus include 3D technology and must be used with 3D eyeglasses.

Contested services in Class 42

The contested design and development of computers and software (listed twice) are covered by, or at least overlap with, the opponent’s design of computer systems and computer software design, respectively. Therefore, these services are identical.

The contested development (design), installation, maintenance, updating or rental of software are covered by the opponent’s computer software design; installation of computer programs, maintenance of computer software; updating of computer software; rental of computer software, respectively. Therefore, these services are identical.

The contested software development overlaps with the opponent’s computer software design. Therefore, they are considered identical to the opponent’s services.

The contested computer programming (listed twice); design of computer systems are identically contained in the opponent’s list of services.

The contested computer system analysis is included in the broad category of the opponent’s systems analysis. Therefore, they are identical.

The contested consultancy in the design and development of computers are covered by the opponent’s consultancy in the field of computers. Therefore, these services are identical.

The contested digitization of documents is included in the broad category of the opponent’s conversion of data or documents from physical to electronic media. Therefore, they are identical.

The contested information technology (IT) consultancy includes, as a broader category the opponent’s computer consultancy. 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 technical research includes or, at least, overlaps with the opponent’s consultancy in the field of computers. Therefore, these services are considered identical.

The contested development of image analysis methods overlap with the opponent’s design of computer systems to the extent that image analysis largely contains the field of computer or machine vision, and medical imaging, and makes heavy use of pattern recognition, digital geometry, and signal processing. Therefore, they are identical.

The contested consultancy relating to computers, image acquisition systems, data transmission systems includes, as a broader category, or overlap with, the opponent’s computer consultancy. 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 design of client-server systems are included in the broad category of, or overlap with, the opponent’s design of computer systems. Therefore, they are identical.

The contested electronic data storage (listed twice) includes, as a broader category, the opponent’s conversion of data or documents from physical to electronic media. 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 software as a service (SaaS) is a software licensing and delivery model in which software is licensed on a subscription basis and is centrally hosted. The contested cloud computing consists of using a network of remote servers hosted on the Internet to store, manage, and process data, rather than a local server or a personal computer. Therefore, the contested services are, at least, similar to the opponent’s computer software rental as they may have the same providers and distribution channels and furthermore they target the same end users. Moreover, these services are in competition.

The contested hosting of servers (listed thrice) are, at least, similar to the opponent’s design and maintenance of websites for third parties as they may have the same providers and distribution channels and furthermore they target the same end users. Moreover, these services are in competition.

The contested scientific research is similar to the opponent’s computer programming because these services may have the same nature and also coincide in providers and end users.

The contested consultancy relating to digital cameras is similar to the opponent’s computer consultancy. These services may coincide in nature, producers/providers, distribution channels and end users. Digital cameras and computers are used together for many business purposes, including taking photos to include in presentations and proposals, to document change, to capture people and ideas and to promote products or services. Therefore, these services are closely linked and can even be complementary.

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 are directed at the public at large and/or 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, the sophistication, the specialised nature, or the terms and conditions of the purchased goods and services.

3. The signs

LIFE	LifeViz
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 common element ‘LIFE’ is meaningful in certain territories, namely in those countries where English is understood. Contrary to what the holder argues, this element is not descriptive, allusive or otherwise weak for the relevant goods and services and, therefore, it is distinctive. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English−speaking part of the public.

As regards in particular the contested sign, it must be noted that although it is composed of one verbal element, the relevant consumers will break it down into elements that suggest a concrete meaning, or that resemble words that they already know (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57; 13/02/2008, T-146/06, Aturion, EU:T:2008:33, § 58). Therefore, it is considered that English−speaking consumers will perceive and understand the word ‘Life’ in both signs as ‘the condition that distinguishes organisms from inorganic objects and dead organisms’ or as ‘the animate existence or period of animate existence of an individual’ (Extracted on 13/09/2017 from the dictionary on line ‘Dictionary.com’ – http://www.dictionary.com).

As regards the element ‘Viz’ of the contested sign, only some English−speaking consumers will associate it with a meaning, namely with the abbreviation, ‘viz.’, of the Latin word ‘videlicet’ meaning ‘that is to say; namely’. However, other English−speaking consumers will not perceive any meaning in this element because it is normally and exclusively used to introduce examples or further details to illustrate a point and this is not the case in the contested sign. Some may even think that the two terms forming the contested sign have been fancifully inverted and, to that extent, the meaning of the sign would be ‘namely life’ or ‘that is life’. In any case, this element is not descriptive, allusive or otherwise weak for the relevant goods and services and, therefore, it is distinctive.

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.

Visually, the signs coincide because the distinctive element, ‘LIFE’, that entirely forms the earlier mark, is totally incorporated at the beginning of the contested sign which is the part that first catches the attention of the reader. Both signs are word marks and, thus, the words themselves are protected, not their written form. Therefore, it is irrelevant whether the word marks are represented in lower, upper or title case letters. However, they differ in the distinctive element ‘VIZ’ of the contested sign. Therefore, the signs are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the sound of the letters /L−I−F−E/, present identically in both signs. The pronunciation differs in the sound of the letters /V−I−Z/ of the contested mark, which have no counterpart in the earlier mark. Therefore, the signs are aurally similar to an average degree.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the marks. Both signs will be associated with the same meaning. For some consumers, the contested sign includes an additional concept which is not present in the earlier mark. However, this concept does not substantially modify the semantic content of the contested sign. Therefore, the signs are conceptually highly similar.

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 and 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

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

The goods and services, found to be identical or similar, are directed at the public at large and/or at business customers whose degree of attention may vary from average to high. The signs are visually and aurally similar to an average degree and conceptually to a high degree. The degree of distinctiveness of the earlier sign is one of the factors to be taken into account in the overall assessment (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23). In the present case, the distinctiveness of the earlier mark must be seen as normal.

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).

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. Indeed, it is highly conceivable that the relevant consumer will perceive the contested mark as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods or services that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49).

In its observations, the holder argues that the earlier trade mark has a low distinctive character given that the word ‘LIFE’ is largely used in English and also because there are many trade marks that include it. The holder states that it found 395 different registered trademarks inclusive of the word ‘life’ and for the sole Class 42.

However, the holder did not provide any evidence of the content of its allegations. Moreover, 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 opponent does not demonstrate that consumers have been exposed to widespread use of, and have become accustomed to, trade marks that include ‘LIFE’ for goods and services of Classes 9 and 42. Under these circumstances, the holder’s claims must be set aside.

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

Therefore, the opposition is well founded on the basis of the opponent’s European Union trade mark registration No 4 585 295. It follows that the contested trade mark must be rejected for all the contested goods and services.

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

Boyana NAYDENOVA

Benoit VLEMINCQ

Martina GALLE

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.