OPPOSITION No B 2 394 677

International Dermal Institute, Inc., 1535 Beachey Place, Carson, California 90746, United States of America (opponent), represented by Baker & McKenzie LLP, 100 New Bridge Street, London  EC4V 6JA, United Kingdom (professional representative)

a g a i n s t

Chi International B.V., Koele Mei 42, 4816 JD Breda, The Netherlands, (applicant), represented by NLO Shieldmark B.V., New Babylon City Offices. 2e étage, Anna van Buerenplein 21A, 2595DA Den Haag, The Netherlands (professional representative).

On 27/07/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 394 677 is partially upheld, namely for the following contested goods:

Class 3:

Soaps, perfumery, eau de toilette, aftershave, eau de cologne, essential oils, aromatherapy preparations, not included in other classes; massage oils and massage preparations, not included in other classes; deodorants and anti-perspirant deodorants for use on the person; preparations the care of the scalp and hair, not included in other classes; shampoo and conditioners; hair dyes; styling preparations for hair; dentifrices; non medical preparations for mouth care; oral and dental care preparations, not included in other classes; non-medicated toilet preparations; toiletries for bathing and showering; skincare cosmetics; oils, creams and lotions for care of the skin, not included in other classes; shaving preparations; preparations for use before and after shaving; depilatories; cosmetic preparations for tanning the skin and sunscreen preparations; cosmetics; make-up and make-up removing preparations; petroleum jelly for cosmetic purposes; lip conditioner; talcum powder; cotton wool and sticks for cosmetic purposes; cosmetic pads, tissues or wipes; pre-moistened or impregnated cleansing pads, tissues or wipes for cosmetic purposes; cosmetic masks; face masks for cosmetic purposes.

Class 5:

Medicines, pharmaceutical preparations, including in powder, tablet, ointment and liquid form; sanitary preparations for medical purposes; dietetic substances adapted for medical use; disinfectants; medicinal tea; vitamin preparations; food supplement for medical purposes; natural oils for medical purposes; natural medicinal herbs and herb mixes adapted for medical use; food supplements of vegetable origin, not for medical purposes, not included in other classes.

2.        European Union trade mark application No 12 857 141 is rejected for all the above goods. It may proceed for the remaining goods.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 12 857 141. The opposition is based on, inter alia, international trade mark registration No 959 271 designating the European Union. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

The opposition is based on more than one earlier trade mark. The Opposition Division finds it appropriate to first examine the opposition in relation to the opponent’s international trade mark registration No 959 271 designating the European Union.

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.

The applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based.

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

As set out before, the examination will proceed in relation to the opponent’s international trade mark registration No 959 271 designating the European Union, therefore the examination of the proof of use will now focus on this earlier mark.

The contested application was published on 28/07/2014. 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 28/07/2009 to 27/07/2014 inclusive.

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

Class 3:	Aromatherapy oils; bath salts; body creams; body oils; body scrubs; body washes; deodorant for personal use; exfoliants for the skin; foundation; hair care preparations; hair conditioners; make-up removers; non-medicated skin care preparations; pre-moistened cosmetic wipes; shampoos; shaving preparations; skin care boosters, namely, concentrated non-medicated skin care preparations for treatment of a variety of skin conditions; skin cleansers; skin conditioners; skin creams; skin masques; skin moisturizers; skin scrubs; sun block preparations; sun care lotions; and sun screen preparations.
Class 5:	Acne medications; antibacterial skin wash; dietary supplements; medicated skin clearing gel; medicated pre-moistened wipes; and medicated skin care preparations.
Class 35:	Retail store services in the field of skin care products.
Class 44:	Skin care services; skin analysis and consultation services rendered in connection therewith.

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 30/07/2015, according to Rule 22(2) EUTMIR, the Office gave the opponent until 05/10/2015 to submit evidence of use of the earlier trade mark. The opponent requested two consecutive extensions which were granted; the Office in the last extension, gave the opponent until 05/02/2016. On 05/02/2016, within the time limit, the opponent submitted evidence of use.

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

• Witness statement of Grant Robery, Global Trade Mark Counsel and authorised signatory for Unilever N.V., a company that in December 2015 acquired the company and the above mentioned trade marks owned by International Dermal Institute, Inc. According to this document, Mr. Robery lists the trade marks invoked as basis for the current opposition, and indicates that they have been used in several countries of the European Union and worldwide in the relevant period.

Mr. Robery lists and explains the different items of evidence presented as proof of use, and itemized as GR1 to GR25.

• Exhibits GR3-6: Show expenditures in advertising and promotion in Belgium. Most of the evidence belongs to the relevant period (2009, 2010, 2011 and 2014) and despite the different currencies involved in the different documents, they can be cross-referenced as the dates, suppliers and description/concepts match between the invoices or payment checks, and the advertisement worksheets.

For instance, one of the worksheets for expenses in advertisement presented shows an expenditure dated 13/06/2010, with item No 3A, and concept: advertisement in DERMALOGICA trade mark in the magazine ‘Pro Estetic’ in Dutch and French. The amount totals 2,300 EUR. This piece of evidence is followed and backed up by the invoice from the provider ‘ProEsthetic (EuroBest Products)’ for the same amount (plus VAT) with date 05/06/2010. This is then accompanied by the photograph of two full-page advertisements where the DERMALOGICA products can be seen, one in Dutch and the other in French. These advertisements supposedly correspond to the aforementioned magazine.

• Exhibits GR7-9: Show expenditures in advertising and promotion in Finland. Most of the evidence belongs to the relevant period (2009 and 2010) and despite the different currencies involved in the different documents, they can be cross-referenced as the dates, suppliers and description/concepts match between the invoices or payment checks, and the advertisement worksheets.

In this case, for instance, one of the worksheets for expenses presented shows an expenditure dated 05/08/2009, with item No 37, and the following concept: ‘Trade Show 2-3.10.2009 Rental B’. The amount totals 986.75 EUR. This piece of evidence is followed and backed up by the invoice from the provider for the same amount (plus VAT), similar concept ‘Kosmetologipäivät 2-3.10.2009’ with the date of 05/08/2009. This is then followed and backed up by the photograph of a trade show booth where the DERMALOGICA products can be seen in shelves and some staff supposedly from the DERMALOGICA brand offering the products and services to the potential consumers; this photograph however is undated.

• Exhibits GR10: Show expenditures in advertising and promotion in France and Finland. Most of the evidence belongs to the relevant period (2009, 2010, 2011 and 2012) and despite the different currencies involved in the different documents, they can be cross-referenced as the dates, suppliers and description/concepts match between the invoices or payment checks, and the advertisement worksheets. In this case a mix of trade show expenses and magazines advertisements are shown.

• Exhibit GR12: Shows a table with the breakdown of the total sales figures corresponding to the German market plus the figures of marketing and promotion costs. The period covered is 2009 to 2014. The sales detail does not include the earlier trade mark denomination, namely ‘DERMALOGICA’. This document originates from the opponent itself, and is not dated, although the summary presented refers to the relevant period.

• Exhibits GR13 to GR17 contain press clippings, excerpts and advertisements from specialised and fashion magazines (Gala, Grazia, In Touch, Mädchen, Vogue, Spa Inside …) and also online beauty blogs where the goods and services for which the earlier mark is registered are publicised, advertised, shown or commented. Most of these artworks, press clippings and excerpts are dated and fall in the relevant period (exhibit GR19 is not considered as it corresponds to 2015). They correspond to the relevant territory, namely Germany, as can be seen from the language used and the addresses in some of the evidence items. The products are shown with the earlier mark affixed to it and the sign is also displayed in the items where services are publicised, for instance in the Hotels where beauty/skincare/wellness centers are offered, namely: ‘The Mandala Hotel’ in Berlin, ‘Wellnesshotel Sommer’ in Füssen (Allgäu/Bayern) and ‘Wellnesshotel Meerlust’ in Ostseeheilbad Zingst.

• Exhibit GR20: Shows expenditures in advertising and promotion in The Netherlands, as can be seen from the language used (Dutch) and some addresses in the invoices. Part of the evidence belongs to the relevant period (2009, 2011 and 2012) and despite the different currencies involved in the different documents, they can be cross-referenced as the dates, suppliers and description/concepts match between the invoices or payment checks, and the advertisement worksheets. In this case the expenses refer to magazine advertisements.

• Exhibit GR21: Shows expenditures in advertising and promotion in Portugal, as can be seen from the language used (Portuguese) and addresses in the invoices. The evidence corresponds to the relevant period (2009). The expenditure in a stand where the services ‘Skin Bar’ have been offered bearing the trade mark ‘DERMALOGICA’ is accompanied by the invoice from the suppliers as well as some photos of the stand itself.

• Exhibit GR22: Shows expenditures in advertising and promotion in Sweden, as can be seen from the language used (Swedish) and some addresses in the invoices. Part of the evidence belongs to the relevant period (2009, 2010, 2011 and 2012) and despite the different currencies involved in the different documents, they can be cross-referenced as the dates, suppliers and description/concepts match between the invoices or payment checks, and the advertisement worksheets. In this case the expenses refer to magazine advertisements.

• Exhibit GR23 contains a set of documents with tables, originating from the opponent’s accountancy systems, where the detail of costs in promotion in trade shows and advertisement in magazines is shown for the years 2011, 2012, 2013 in the United Kingdom and Ireland. The amounts vary between the tens to hundred thousands of EUR per year.

• Exhibit GR24 are screenshots, press clippings, excerpts and advertisements from promotional materials for the ‘DERMALOGICA’ brand in the United Kingdom and Ireland. The goods and services for which the earlier mark is registered are publicised, advertised and shown. Most of these artworks, press clippings and excerpts are dated and fall in the relevant period. They correspond to the relevant territory, as can be seen from the currency used (British pounds), the domain of the referenced URLs (.co.uk), the addresses and the phone numbers prefixes in some of the evidence items. The products are shown with the earlier mark affixed to it and the sign is also displayed in the items where services are publicised.

In addition, the Opposition Division considers that in order to assess the genuine use of the earlier trade mark, it should also take into account the evidence submitted during the substantiation period (in particular on 16/03/2015) to support the claim for reputation and enhanced distinctiveness of the earlier marks:

• Annex 2: Screenshot of Dutch homepage Chi (www.chi.nl) of 16/03/2013.

• Annex 3: Witness statement from Mr. Robert Sorensen, general counsel of the earlier trade mark owner, dated 09/03/2015. In the document, it is stated that ‘DERMALOGICA’ is the selected brand among professional skin care therapists in the United States, with over 6,000 skin care centers in the United States alone carrying DERMALOGICA brand products, with many thousands more in Europe, Asia, Latin America, Africa and Australia.”

Mr. Sorensen also remarks that the ’DERMALOGICA’ brand is extensively used around the world and is well known by skin care professionals, consumers as well as those in the skin care industry”. He mentions the range of products and services that have been commercialised using the ‘DERMALOGICA’ trade mark and details on the content of exhibits A to M (see below).

A big volume of sales is also claimed by Mr. Sorensen as a result of the market activity of this brand for the registered products and services but no data is provided beyond a list of countries where they are sold/provided.

Furthermore, he argues that an extensive expense in advertisement and promotion has been made to obtain and preserve a market outlet for the ‘DERMALOGICA’ brand. Again no data is provided with the argument that as a privately held company, this kind of information cannot be disclosed.

• Annex 4: Advertisement with the testimonial of Diane Dusting, on-set make-up artist for “The Great Gatsby” movie. The trade mark can be seen affixed to the goods. There is no date other than the year 2013 claimed as the year when the movie was released. No information on the extent of distribution of this advertisement.

• Exhibits A, B: Photograph and copies of some ‘DERMALOGICA’ containers showing several samples of products (photographs and screenshots of website) with the earlier mark affixed to them. No date is indicated. The different products that can be seen are:

• Stress relief treatment oil
• Renewal lip complex
• Body hydrating cream
• Exfoliating body scrub
• Conditioning body wash
• Daily microfoliant
• Intensive moisture masque
• Active moist
• Sheer moisture
• Soothing shave cream
• Multi-active toner
• Super rich repair
• Precleanse
• Multivitamin body block
• Shine therapy shampoo
• Intensive eye repair

• Exhibit C: Photographs of flagship store in Santa Monica, California, USA. Therefore, it does not refer to the relevant territory. No date is present.

• Exhibit D: Menu for services provided at the ‘DERMALOGICA’ store. The trade mark can be seen. No date is present. It belongs to the concept store in Montana, USA.

• Exhibits E, F: Listing for ‘DERMALOGICA’ concept spaces extracted from the opponent’s corporate website on 09/03/2015. Webpages describing the ‘DERMALOGICA’ concept spaces in the European Union and showing photographs and contact details where the products and services covered by the earlier mark are commercialised, offered and/or sold in different countries, some of them included in the relevant territory. Extracted from the opponent’s corporate website on 10/03/2015. The services and treatments offered in such spaces can be seen, namely:

• Face mapping
• MicroZone treatment
• Core treatment
• Thermal touch therapies
• Skin bar
• Thermal back therapies
• Skin treatment

• Exhibit G: Examples of the most relevant publicity initiatives in the United States of America for ‘DERMALOGICA’ skin care products. Extracted from the opponent’s corporate website on 10/03/2015. No dates are indicated or can be perceived from the small images in the evidence. Therefore, it does not refer to the relevant territory.

• Exhibit H: Screenshots from ‘DERMALOGICA’ corporate website corresponding to the United States of America. The home page excerpt was extracted on 07/03/2008, on the other screenshot a date can hardly be seen and some have no date at all. The screenshots  show the details of two ‘DERMALOGICA’ products. This exhibit does not refer to the relevant territory.

• Exhibits I, I1 to I-9: Screenshots from the ‘DERMALOGICA’ corporate website and the local homepages in different countries (Belgium, Croatia, Denmark, France, Germany, The Netherlands, Poland, Spain, Sweden, United Kingdom).

• Exhibit J: Printout of Google search results for ‘DERMALOGICA’.

• Exhibit M: Consumer questionnaire and information sheet.

Preliminary remarks

First, the applicant argues that the opponent did not submit translations of some of the evidence of use and that therefore this evidence should not be taken into consideration. However, the opponent is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (Rule 22(6) EUTMIR). Taking into account the nature of the documents which have not been translated and are considered relevant for the present proceedings, namely, advertisements and press clips in, for instance, French, German and Finnish, and their self-explanatory character, the Opposition Division considers that there is no need to request a translation.

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

However, this does not mean that such statements do not have any probative value at all. The final outcome depends on the overall assessment of the evidence in the particular case. This is because, in general, further evidence is necessary to establish use, since such statements have to be considered as having less probative value than physical evidence (labels, packaging, etc.) or evidence originating from independent sources.

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

Finally, the applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods and services for which the earlier mark is registered.

The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

Place of use

The exhibits listed above, show that the place of use is Belgium, Germany, Finland, France, United Kingdom, Ireland, The Netherlands, Sweden and Portugal. This can be inferred from the language of the documents (‘German’, ‘French’, ‘Dutch’, ‘Finnish’, ‘Swedish’, ‘Portuguese’), the currency mentioned (Euro, British pounds, Swedish crowns) and some addresses in all those countries. Other indicators of place of use are the domain of the URLs or e-mail addresses or the phone prefixes shown in the references. Therefore, the evidence relates to the relevant territory.

Time of use

Most of the evidence is dated within the relevant period, as has been indicated in the specific items listed above, despite the presence of few of them where the date falls outside it (generally in the last quarter of 2014 or in 2015). In few other items, dates cannot be read or are not displayed.

Extent of use

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

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

As set out before, the only information that the opponent submits regarding the volume of sales is indicated in exhibit GR12 regarding sales in Germany. However this document (a table) comes from the opponent itself and the earlier mark ‘DERMALOGICA’ is not referred to. According to the witness statement of Mr. Sorensen, no concrete data is provided on the basis that the opponent is a privately held company, and this kind of information cannot be disclosed.

Consequently, most of the evidence relates to advertising and marketing expenditure. In this regard, the Opposition Division notes that trade marks fulfil their function of indicating the commercial origin of goods or services and acting as symbols of the goodwill of their owner not only when they are actually used on or for goods or services but also when they are used in advertising. In fact, the advertising or market communication function of trade marks is one of their most important functions. Therefore, use in advertising will generally be considered to amount to genuine use if the volume of advertising is sufficient to constitute genuine public use of the mark, and if a relationship can be established between the mark and the goods or services for which the mark is registered.

In the present case, the evidence submitted permits the Opposition Division, as has been detailed above, to establish a link between the advertisements bearing the trade mark ‘DERMALOGICA’, which can be considered objective evidence, and the goods and services for which it is registered. As a result, the advertising and marketing initiatives carried out by the opponent are considered sufficient as they show significant and continuous investment efforts in several countries of the relevant territory for the relevant goods and services. The appearance in beauty and social life magazines and trade shows are two common channels through which the relevant goods and services are advertised and try to reach out potential customers or order to increase market share.

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not disclosed or is not particularly high (only the data corresponding to the German market is shown) may be offset by the fact that use of the mark was extensive or very regular, for instance in terms of marketing and advertising initiatives.

Taking into account the evidence in its entirety, the documents filed provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use, to consider that the opponent has provided sufficient indications concerning the extent of the use of the earlier mark.

Nature of use

The earlier mark is the word mark ‘DERMOLOGICA’. All the evidence presented and shown, displays the products and services bearing the earlier right depicted using a standard black font in white background or white font in black background, and only the registered trade mark symbol ® is incorporated as additional element. In any event, this element is just an informative indication that the sign is purportedly registered and is not part of the trade mark as such. Representations of the signs are in general shown as , or . Therefore, the earlier mark has been used as a trade mark and as registered without additional elements that could alter its distinctive character.

Use for the goods and services registered

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

As can be seen in the list of products appearing in the items of evidence submitted by the opponent corresponding to Exhibits A, B and GR3 to GR24, the screenshots, advertisements, excerpts and online shop catalogues and product details refer to:

• Stress relief treatment oil
• Renewal lip complex
• Body hydrating cream
• Exfoliating body scrub
• Conditioning body wash
• Daily microfoliant
• Intensive moisture masque
• Active moist
• Sheer moisture
• Soothing shave cream
• Multi-active toner
• Super rich repair
• Precleanse
• Multivitamin body block
• Shine therapy shampoo
• Intensive eye repair
• Total eye care
• Ultra calming serum concentrate
• Skin perfect primer
• Ultra calming mist
• Peeling
• Emulsifying protection 50 sport
• Dynamic skin recovery spf30
• Oil control lotion
• Pre-shave guard
• Overnight repair serum
• Skin hydrating booster
• Daily resurfacer
• Precleanser
• Hydro-active mineral salts
• Overnight cleaning gel
• Skin perfect primer spf30
• Sheer tint spf20
• Cover tint spf20
• Clean massage oil base
• Exfoliant accelerator 35

The items of evidence submitted by the opponent corresponding to exhibits E, F and GR3 to GR24, refer to the services provided in the concept spaces of the different countries of the relevant territory, and also in trade shows, or more specifically the skin bar services for instance in Portugal. The complete list is:

• Face mapping
• MicroZone treatment
• Core treatment
• Thermal touch therapies
• Skin bar
• Thermal back therapies
• Skin treatment

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 the following goods and services:

Class 3:		Bath salts; body creams; body oils; body scrubs; body washes; exfoliants for the skin; make-up removers; non-medicated skin care preparations; pre-moistened cosmetic wipes; shampoos; shaving preparations; skin care boosters, namely, concentrated non-medicated skin care preparations for treatment of a variety of skin conditions; skin cleansers; skin conditioners; skin creams; skin masques; skin moisturizers; skin scrubs; sun block preparations; and sun screen preparations.
Class 44:	Skin care services; skin analysis and consultation services rendered in connection therewith.

In the evidence submitted by the opponent, no relevant information about the goods in Class 5 for which the earlier mark is registered has been found. Consequently, the earlier trade mark cannot be considered used in relation to those goods for the purposes of the examination of the opposition. Therefore, the Opposition Division will only consider the abovementioned goods and services 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 goods and services on which the opposition is based are the following:

Class 3:

Bath salts; body creams; body oils; body scrubs; body washes; exfoliants for the skin; make-up removers; non-medicated skin care preparations; pre-moistened cosmetic wipes; shampoos; shaving preparations; skin care boosters, namely, concentrated non-medicated skin care preparations for treatment of a variety of skin conditions; skin cleansers; skin conditioners; skin creams; skin masques; skin moisturizers; skin scrubs; sun block preparations; and sun screen preparations.

Class 44:

Skin care services; skin analysis and consultation services rendered in connection therewith.

The contested goods are the following:

Class 3:	Soaps, bleaching preparations and other substances for laundry use, cleaning preparations, perfumery, eau de toilette, aftershave, eau de cologne, essential oils, aromatherapy preparations, not included in other classes; massage oils and massage preparations, not included in other classes; deodorants and anti-perspirant deodorants for use on the person; preparations for the care of the scalp and hair, not included in other classes; shampoo and conditioners; hair dyes; styling preparations for hair; dentifrices; non medical preparations for mouth care; oral and dental care preparations, not included in other classes; non-medicated toilet preparations; toiletries for bathing and showering; skincare cosmetics; oils, creams and lotions for care of the skin, not included in other classes; shaving preparations; preparations for use before and after shaving; depilatories; cosmetic preparations for tanning the skin and sunscreen preparations; cosmetics; make-up and make-up removing preparations; petroleum jelly for cosmetic purposes; lip conditioner; talcum powder; cotton wool and sticks for cosmetic purposes; cosmetic pads, tissues or wipes; pre-moistened or impregnated cleansing pads, tissues or wipes for cosmetic purposes; cosmetic masks; face masks for cosmetic purposes.
Class 5:	Medicines, pharmaceutical preparations, including in powder, tablet, ointment and liquid form; sanitary preparations for medical purposes; dietetic substances adapted for medical use; food for babies; disinfectants; medicinal tea; vitamin preparations; food supplement for medical purposes; natural oils for medical purposes; natural medicinal herbs and herb mixes adapted for medical use; food supplements of vegetable origin, not for medical purposes, not included in other classes.
Class 30:	Herbs, not for medical purposes; spices; herb mixes, not for medical purposes.

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

The term ‘including’, used in the applicant’s list of goods, indicates that the specific goods 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).

However, the term ‘namely’, used in the opponent’s list of goods and services to show the relationship of individual goods and services with a broader category, is exclusive and restricts the scope of protection only to the specifically listed goods.

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 3

Shaving preparations; shampoo; make-up removing preparations; sunscreen preparations are identically contained in both lists of goods (including synonyms).

The contested skincare cosmetics; cosmetics; oils, creams and lotions for care of the skin, not included in other classes overlap with the opponent’s non-medicated skin care preparations. Therefore, they are identical.

The contested make-up preparations include, as broader category, or overlaps with, the opponent’s make-up removers. Since the Opposition Division cannot dissect ex officio the broad categories of the contested goods, it is considered identical to the opponent’s goods.

The contested cosmetic masks; face masks for cosmetic purposes are included in the broad category of, or overlap with, the opponent’s skin masques. Therefore, they are identical.

The contested cosmetic pads, tissues or wipes; pre-moistened or impregnated cleansing pads, tissues or wipes for cosmetic purposes are included in the broad category of, or overlap with, the opponent’s pre-moistened cosmetic wipes. Therefore, they are identical.

The contested essential oils; aromatherapy preparations, not included in other classes; massage oils and massage preparations, not included in other classes include, as broader categories, or overlap with, the opponent’s body oils. 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 preparations for use before and after shaving; aftershave are included in the broad category of the opponent’s shaving preparations. Therefore, they are identical.

The contested non-medicated toilet preparations; toiletries for bathing and showering overlap with the opponent’s body washes. Therefore, they are identical.

The contested cosmetic preparations for tanning the skin overlap with the opponent’s sun screen preparations. Therefore, they are identical.

The contested soaps is a broad category that includes for instance, toilet soaps, shaving soap, etc. and as such, it is highly similar to the opponent’s shampoos. They have the same purpose (personal hygiene and beautification), can coincide in distribution channels where they are directed at the same consumer and can originate from the same producers.

The contested talcum powder; cotton wool and sticks for cosmetic purposes are toiletries. As such they have the same purpose (personal hygiene and beautification) and the same or similar nature and method of use as they opponent’s make-up removers. They generally coincide in distribution channels, target the same relevant public and may come from the same producers. Therefore they are highly similar.

The contested petroleum jelly for cosmetic purposes; lip conditioner; depilatories; deodorants and anti-perspirant deodorants for use on the person; perfumery, eau de toilette, eau de cologne are highly similar to the opponent’s non-medicated skin care preparations. They have the same purpose (personal hygiene and beautification), can coincide in distribution channels where they are directed at the same consumer and can originate from the same producers.

The contested preparations for the care of the scalp and hair, not included in other classes; conditioners; hair dyes; styling preparations for hair are highly similar to the opponent’s shampoos. They have the same purpose (personal hygiene and beautification), can coincide in distribution channels where they are directed at the same consumer and can originate from the same producers.

The contested dentifrices; non medical preparations for mouth care; oral and dental care preparations, not included in other classes are personal hygiene products, just as the opponent’s shampoos. They are similar to a low degree as they have the same purpose (personal hygiene) and generally coincide in distribution channels.

The remaining contested goods in Class 3, namely bleaching preparations and other substances for laundry use, cleaning preparations have different purposes from the opponent’s goods and services in Classes 3 and 44; i.e. they are not used to treat one’s skin or as a personal hygiene or beautification, which is the main purpose of all the opponent’s goods and services. Consequently, they have a completely different purpose, differ in nature and method of use and they are neither in competition nor complementary. Moreover they are typically commercialised via different distribution channels and target a different consumer. Ultimately the manufacturers or companies rendering the services do not coincide in general. Therefore, they are dissimilar.

Contested goods in Class 5

The contested natural oils for medical purposes can have the same purpose and method of use as the opponent’s body oils. They may also be in competition with each other and can be found in the same outlets such as pharmacies or health shops. Furthermore, they can originate from the same manufacturers and can be directed at the same public. Therefore they are highly similar.

The contested medicines, pharmaceutical preparations, including in powder, tablet, ointment and liquid form; disinfectants can have the same purpose and method of use as the opponent’s non-medicated skin care preparations. For instance, the medicines or pharmaceutical preparations can be dedicated to the treatment of the skin of the patients or, disinfectants can be antibacterial soaps containing chemical ingredients that purportedly assist in killing bacteria, used in general purposes but also in health and sanitary environments. Therefore, they can originate from the same providers, and be commercialised in the same outlets. Furthermore, they can target the same relevant public. Therefore they are considered similar.

The contested sanitary preparations for medical purposes may cover products such as cleansing solutions and medicated shampoos. As such these goods can coincide in distribution channel and relevant public with the applicant’s skin cleansers and shampoos. Therefore, they are similar to a low degree.

The contested dietetic substances adapted for medical use; medicinal tea; vitamin preparations; food supplement for medical purposes; food supplements of vegetable origin, not for medical purposes, not included in other classes; natural medicinal herbs and herb mixes adapted for medical use, are substances prepared for special dietary requirements, with the purpose of treating or preventing disease, also referred to as dietary supplements or food supplements. Their purpose is to supplement the normal diet and which are concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, marketed in dose form, namely forms such as capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids and powders designed to be taken in measured small unit quantities (see Article 2(a) of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements). As such these goods can therefore coincide in nature with the opponent’s non-medicated skin care preparations, as nowadays these preparations can also be a source of nutrients. It is not uncommon to use the aforementioned contested goods in addition to non-medicated skin care preparations with the intention of body and beauty-care (for instance, to slow the effects of skin-aging or prevent hair loss). Moreover, they can coincide in end users and can be sold in the same distribution channels. Finally, these goods can be in competition. Therefore, they are similar to a low degree.

The contested food for babies is used to make sure that babies get proper nutrition. Therefore, they have different purpose from all the opponent’s goods and services in Classes 3 and 44; i.e. they are not used to treat one’s skin or as a personal hygiene or beautification, which is the main purpose of all the opponent’s goods and services. Consequently, they have a completely different purpose, differ in nature and generally in method of use as well, and they are neither in competition nor complementary. Moreover they are typically commercialised via different distribution channels and target a different consumer. Ultimately the manufacturers or companies rendering the services do not coincide in general. Therefore, they are dissimilar.

Contested goods in Class 30

The contested herbs, not for medical purposes; spices; herb mixes, not for medical purposes are foodstuffs of plant origin prepared for consumption or conservation as well as auxiliaries intended for the improvement of the flavour of food. They are dissimilar to all opponent’s goods and services in Classes 3 and 44. These goods have different purposes: the opponent’s goods and services are mainly focused in skin treatment and care. They also differ in nature and method of use, and they are neither in competition nor complementary. They target different relevant publics, are sold through different distribution channels and are produced by different manufacturers.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the goods found to be identical or similar are directed at the public at large and also directed at business customers with specific professional knowledge or expertise in the beauty and skin care industry and also in the medical industry.

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

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

The degree of attention may vary from average to high, depending on the specialised nature of the goods, the frequency of purchase and their price. For the goods in Class 3 the degree of attention will be average and in the case of the goods in Class 5, the degree of attention will be high.

3. The signs

DERMALOGICA	AROMALOGICA
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 relevant consumers, when perceiving a verbal sign, 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). In the present case, although the signs are composed of one verbal element, part of the relevant public in the EU will split them into the elements ‘DERMA’, ‘AROMA’ and ‘LOGICA’ as they are meaningful in certain territories, for example, in those countries where Spanish is understood.

Consequently, in view of the above, the Opposition Division finds it appropriate to focus the comparison of the signs on the Spanish-speaking part of the public.

In light of the above, in the present case the earlier mark ‘DERMALOGICA’ will be perceived as an unusual combination of two components for the Spanish-speaking part of the relevant public, namely the words ‘DERMA’ and ‘LOGICA’. Similarly, the contested sign will be perceived as an unusual combination of two components, namely the words ‘AROMA’ and ‘LOGICA’.

The word ‘DERMA’ included in the beginning of the earlier mark will be associated by the relevant public with the concept of ‘dermo’ (in Spanish) standing for another term for dermis, the skin (see ‘Diccionario de Real Academia Española’ at rae.es). Bearing in mind that the relevant goods are skin care products, beauty-related preparations and skin care medicines and related services (retail store and skin care services) it is considered that this element is non-distinctive for all the relevant goods and services, as it indicates their intended purpose. Therefore, the relevant public will not pay as much attention to this non-distinctive element as to the other, more distinctive element of the earlier sign, namely the word ‘LOGICA’. Consequently, the impact of this element is very limited when assessing the likelihood of confusion between the marks at issue.

The word ‘AROMA’ included in the beginning of the contested sign will be perceived as describing characteristics of all the relevant goods. Bearing in mind that the relevant goods are cosmetics, perfumery, hygienic and cleaning preparations, pharmaceutical preparations, food supplements, etc. it is considered that this element is weak since it informs consumers that the goods have or produce a pleasant odour. The public understands the meaning of this element and will not pay as much attention to them as to the other more distinctive element of the mark, namely the word ‘LOGICA’. Consequently, the impact of this weak element is limited when assessing the likelihood of confusion between the marks at issue.

The word ‘LOGICA’ included in the ending of both signs means a particular method of argument or reasoning. This meaning has no relationship whatsoever with the relevant goods and services of the marks, therefore it has a normal degree of distinctiveness and it is the more distinctive element of the signs.

Visually, the signs coincide in their endings, namely in the word ‘LOGICA’ which is the most distinctive element of the signs. The signs also have the same length (11 letters) and a similar composition: two words well understood but that do not typically appear together in the language, therefore creating a fanciful configuration. However, they differ in their beginnings, the non-distinctive word ‘DERMA’ in the earlier mark, and the weak word ‘AROMA’ in the contested sign.

Therefore, as the signs coincide in their most distinctive element and their differences reside exclusively in non-distinctive or weak elements, they are visually similar to an average degree.

Aurally, the pronunciation of the signs coincides in the syllables forming the distinctive word ‛LO-GI-CA’, present identically in the ending of both signs. However, the pronunciation differs in the syllables of the non-distinctive word ‛DER-MA’ of the earlier mark, and the syllables of the weak word ‘A-RO-MA’ of the contested sign. These elements have no counterpart in the other sign.

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. Although the signs as a whole do not have any meaning for the public in the relevant territory, the element ‘LOGICA’, included in both signs, will be associated with the meaning explained above. However, as this concept will be influenced or tinted by the concepts introduced by the other elements ‘DERMA’ and ‘AROMA’ of the signs, they are conceptually similar to an average degree.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

According to the opponent the earlier trade mark has a reputation and enjoys a high degree of recognition among the relevant public in the European Union in connection with all the goods and services for which it is registered. This claim must be properly considered given that the distinctiveness of the earlier trade mark must be taken into account in the assessment of likelihood of confusion. Indeed, the more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 18).

On 16/03/2015, the opponent submitted the evidence listed above in the proof of use section of this decision.

Having examined the material listed above and considering also what have been said about some of these items of evidence in the assessment of the proof of use, the Opposition Division concludes that the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use.

The evidence is limited exclusively to the affidavit, product containers photographs, screenshots and advertisements. No data has been provided as regards the market presence or the recognition by the relevant public. Therefore, the evidence submitted cannot, per se, prove that the mark enjoys either a high degree of distinctiveness as result of its long standing and intensive use (which could have been proven by providing, for instance, overall turnover and sales volumes, real invoices, price lists or catalogues) or a high degree of recognition among the relevant public in the relevant territory (which could have been proven by providing, for instance, surveys on mark’s recognition corresponding to the relevant territory, or independent articles or comparison’s where this specific circumstance can be objectively be appreciated).

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, despite the presence of a non-distinctive element in the mark as stated above in section c) of this decision.

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5. Global assessment, other arguments and conclusion

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.

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).

The contested goods are partly identical, partly similar and partly dissimilar. The degree of attention of the public varies from average to high depending on the goods. The distinctiveness of the earlier mark is normal.

As set out in section c), the signs are different in their beginnings, what usually has a higher impact in terms of likelihood of confusion in the mind of the consumer, however, in this specific case, those differences occur exclusively in elements of the signs which are non-distinctive and weak. Furthermore, they coincide in an element that plays an independent distinctive role in both signs. In addition, as also explained in the comparison of the signs, their equal structure, namely: ‘Descriptive/Allusive term’ + ‘LOGICA’ could also have an impact in terms of recall and, therefore, in likelihood of confusion, in the mind of the consumers.

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).

Indeed, it is highly conceivable that the consumer may conclude that the goods labelled and offered under the contested sign (‘AROMALOGICA’) come from the same undertaking as the earlier mark (‘DERMALOGICA’) or from one that is economically linked; they may see the earlier mark as being a variant of the contested sign 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). For instance, the earlier mark focused in skin-care goods and services, and the contested sign in products that have or produce a pleasant odour.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the Spanish-speaking part of the public and, therefore, the opposition is partly wellfounded on the basis of the opponent’s international trade mark registration No 959 271 designating the European Union. 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 found to be identical or similar to those of the earlier trade mark, even for those goods found to be similar to a low degree.

The rest of the contested goods 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 goods cannot be successful.

The opponent has also based its opposition on the following earlier trade marks:

Type	Registration No	Denomination	Territory	G&S
EUTM	No 256 156	DERMALOGICA	European Union	Class 3
National mark	No 1 301 528	DERMALOGICA	United kingdom	Class 3
National mark	No 94 513 295	DERMALOGICA	France	Class 3
National mark	No 2 098 446	DERMALOGICA	Germany	Class 3
National mark	No 192 956	DERMALOGICA	Czech republic	Class 3
National mark	No 9 471 330	DERMALOGICA	Slovenia	Class 3
National mark	No 308 258	DERMALOGICA	Sweden	Class 3
National mark	No 142 695	DERMALOGICA	Finland	Class 3
National mark	No 562 657	DERMALOGICA	Benelux	Class 3
National mark	No 303 163	DERMALOGICA	Portugal	Class 3
National mark	No 179 499	DERMALOGICA	Slovakia	Class 3

Since these marks are identical to the one which has been compared and cover the same or a narrower scope of goods, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark will not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08, & T-357/08, Botolist / Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. Reputation of the earlier trade marks

According to the opponent, the earlier trade marks have a reputation in the European Union. Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public.

In the present case the contested trade mark was filed on 08/05/2014. Therefore, the opponent was required to prove that the trade mark on which the opposition is based had acquired a reputation in the European Union prior to that date.

The evidence submitted by the opponent to prove the reputation and highly distinctive character of the earlier trade marks has already been examined above under the grounds of Article 8(1)(b) EUTMR. According to those findings, which are equally valid for Article 8(5) EUTMR, the evidence submitted by the opponent does not demonstrate that the earlier trade mark acquired a high degree of distinctiveness through its use. By the same token, the Opposition Division finds that the evidence submitted by the opponent does not demonstrate that the earlier trade marks acquired a reputation.

Account is also taken that the evidence filed on 05/02/2016 after the substantiation period (following the proof of use request) cannot be taken into account.

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

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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, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Opposition Division

Elisa ZAERA CUADRADO

Fabián GARCIA QUINTO

Julie GOUTARD

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.