OPPOSITION No B 2 435 975

Delta Electronics, Inc., 186 Ruey Kuang Road  Neihu, Taipei  114, Taiwan (opponent), represented by Urquhart-Dykes & Lord LLP, Arena Point Merrion Way, Leeds LS2 8PA, United Kingdom (professional representative)

a g a i n s t

Gregor Höll, Im Schwarzenbach 6, 79576 Weil am Rhein, Germany; Dario Mundhenke, In den Habermatten 20, 4125 Riehen, Switzerland (applicants), represented by Bender Harrer Krevet, Humboldtstr. 3, 79539 Lörrach, Germany (professional representative).

On 18/10/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 435 975 is partially upheld, namely for the following contested goods:

Class 9: Nautical, photographic, cinematographic, optical, measuring, signalling, checking (supervision), teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; data processing equipment, computers; all of these goods being other than instruments for non-destructive testing; none of the aforesaid goods for use in the medical field.

2.        European Union trade mark application No 12 866 315 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 some of the goods of European Union trade mark application No 12 866 315, namely against all the goods in Class 9. The opposition is based on, inter alia, European Union trade mark registration No 10 662 021. The opponent invoked Article 8(1)(b) EUTMR.

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. All the references in this decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

ADMISSIBILITY

In the notice of opposition, the opponent indicated that, as regards the applicant’s goods in Class 9,  the opposition is directed against part of the goods, namely ‘Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life saving and teaching apparatus and  instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; data processing equipment, computers’.  Subsequently, in its submission of 25/01/2017, the opponent listed all the applicant’s goods in Class 9.

As the opponent opposed only part of the goods within the three-month opposition period, which ended on 19/11/2014, the subsequent indication that all the goods are opposed constitutes an inadmissible extension of the scope of the opposition.

Pursuant to Rule 15(3)(a) CTMIR (now 2(2)(i) EUTMDR) the opposition shall be considered to be directed against all of the goods and services of the application if the opponent does not specify otherwise. However, if the opponent specifies the goods and services it opposes, it must do so clearly and precisely, within the three-month opposition period, in a manner that leaves no doubt about the scope of the opposition. This also follows from the requirement of the adversarial nature of the proceedings and the applicant’s right of defence. The Opposition Division cannot speculate about why the opponent opposed certain goods and not others, and is bound by the relief sought (Article 95(1) EUTMR). It logically follows that including any further goods in the scope of the opposition would qualify as an inadmissible extension of the original scope of the opposition.

Admissibility is not a matter of discretion for the parties or the Office, but has to be examined ex officio, at any stage of the proceedings, irrespective of whether the applicant raises it. Therefore, the Opposition Division can only take into account those goods which have been contested within the opposition period.

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.

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 European Union trade mark registration No 10 662 021.

---

1. The goods

After several limitations in the list of the opponent’s goods prior to its registration, the goods on which the opposition is based are the following:

Class 7: Machines and machine tools; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); agricultural implements other than hand-operated; incubators for eggs; elevator door control brushless DC motors; brushless DC motors; AC servo motors; spindle motor; machine fly-wheels; control mechanisms for machines, engines or motors; starters for motors and engines; fans for motors and engines; wind turbines; wind power electricity generation equipments and apparatus; propellers for wind-powered electricity generators; pitch control system for wind turbine; yaw control system for wind turbine; gear box for wind turbine; energy recycle generator; electricity generators; heat exchangers [parts of machines]; blowing machines for the compression, exhaustion and transport of gases; AC motors; AC to DC motor; blower, including DC Motor blower; air to air heat exchanger; liquid heat exchanger; smart heat exchanger; DC motors; stepping motor; electric air-conditioning compressor & its drive for vehicle; tower for wind turbine; braking system for wind turbine; industrial automation solution devices, namely AC servo motor, brushless DC motors and drives (BLDCM); belt-driving starter generator (BSG) for EV; energy recycle equipment, namely waste heat recycle system, kinetic energy recovery system (KERS), and exhaust airflow recycle generators; automatic vending machines; elevator operation apparatus; integrated starter generator (ISG) & its drive for EV; wind and solar energy generation kit.

Class 9: Data processing equipment; AC Motor Drives; Active Front End Units (AFE), namely rectifiers and the controller thereof for providing bidirectional power exchange between AC and DC power and regenerating reusable power to the mains to reduce the cost of power; Hybrid Servo Drives; Elevator Door Control Drives; Elevator Drives; Brushless DC Drives; AC Servo Drives; Spindle Drive; High-Speed Motion Control Card; Print circuit board (PCB) with Integrated Circuit (IC); Rotary Optical Encoders; Programmable Logic Controllers; Text/Graphical Display Panels; Display Screens; Human Machine Interfaces; HMI Controller; Machine Vision Controllers; Temperature Controllers; Pressure sensors; Timer/Counter/Tachometer; Industrial Fieldbus Products; Electric installations for remote control of industrial operations; Electronic interface equipment for industrial machines; Intercommunication apparatus; communication interface card; computers Interfaces; Couplers [data processing equipment]; Industrial Power Supplies; CNC Controllers; Electric Vehicle Charging Equipment and Accessories; Outdoor Enclosure and Accessories for power management apparatus (power rectifier, converter, transformer, current filter, distributor, breaker, monitor) and back-up power supplier; Rectifier; Control Panel [electricity]; Power Inverter; Voltage Regulator; Power Regulator; Battery Storage; Battery Cabinet; Battery Chargers; Electrical apparatus for the remote control of signals; Power Meter; Watt Meter; Electricity Materials [wires, cables]; Electric Switches; AC-DC Adaptor; DC-DC Adaptor; Switching Power Supply; Charger; Junction boxes [electricity]; Connectors [electricity]; Plugs, sockets and other contacts [electric connections]; Power inlet; Solar Junction Box; Duckhead; Indicators [electricity]; Electric Monitoring apparatus; Uninterruptible Power Supply (UPS); High Voltage DC UPS (HVDC); Power Distribution Cabinet (PDC); Power Distribution Unit (PDU); Distribution boards [electricity]; Distribution consoles [electricity]; STS (Static Transfer Switch); ATS (Automatic Transfer Switch); Electric Regulating Apparatus; EMS (Software for Environment Management System); Computer software for operating, controlling and/or managing industrial machines and electronic apparatus; Computer software with the functions of cloud-tech computing, data processing, voice recognition and/or energy monitoring; Computer programs (downloadable) for operating, controlling and/or managing industrial machines and electronic apparatus; Computer programs (downloadable) with the functions of cloud-tech computing, data processing, voice recognition and/or energy monitoring; Computer monitoring programs; Rack; Data Center Infrastructure Product; Container Data Center; Modularized Data Center; Hybrid Container Data Center; Electric apparatus for Commutation; Harmonic Filter; Activer Power Filter; Static Var Compensator (SVC); Static Var Generator(SVG); Static synchronous Compensator (STATCOM); Energy Storage System; capacitors; Wind Power Converter; Flashing lights; Signal Light; Luminous Signs; Traffic light apparatus; Neon signs; LED; Electric Dimmers regulators; Lighting ballasts; Automatic indicators of low pressure in vehicle tyres; indicator; Inductors [electricity]; Body Control Module (BCM) for Vehicle; Remote Starter & Passive Keyless Entry ( PKE ) for Vehicle; Lithium Ion Battery Pack with Management System; Electric batteries for vehicles; Electric Power Steering (EPS) Controller for Vehicle; Air-conditioning controller; Variable Voltage Drives; LCD Digital Signage Display System; Electronic notice boards; Electronic bulletin boards; LED Indoor/Outdoor Display System; DLP Video Wall Display System; Distributive Vision Control System; Signal Decoder; computers; Interfaces [for computers]; Computer peripheral devices; Processors [central processing units]; Microprocessors; Data processing apparatus; MiniCon Centralized Vision Control System; Electronic pens [visual display units]; multi-media projector; electronic projector; projection screen; components and accessories for projectors; Micro Inverter (DC to AC); DC converter; Data Collector; PV Panel Optimizer (DC to DC); electric protection breaker; Circuit breakers; Voltage surge protectors; Solar batteries; e-Tag; e-Signage; e-Reader; e-Paper Device Development Kit, namely the application programming interface (API), software development kit (SDK), and the hardware device platform for the development of software suite using in the electronic reader devices; Electronic tags for goods; Display touch panel; touch panels; Sensor Device; Touch input device; Electronic Publications [downloadable]; Blower for computers; Cross fan for computers; Thermal apparatus for computers; DC fan for computer; Fans Controller; Wind and Solar control interface; solar panels for production of electricity; motors, gears and drives for orientating solar panels; electrical sensors for measuring solar radiation; Heat dispatch cabinet for computers; Air distribution Unit for computers; DC driver; AC to DC driver; Vapor Chamber; Magnetic / Inductive Components; Optical Transceivers; Radio-Frequency (RF) modules; integrated circuits and integrated circuits cores for using in wireless communications and wireless communication equipments and apparatus and digital signal processors; Voltage Controlled Oscillator (VCO); Solar cells; Solar panels; Solar inverters; Solar maximum power point tracker; Renewable energy and hybrid energy power management system, namely, a rack containing rectifier, current stabler, power distributor, power converter, transformer, monitoring module and battery to output the stable electric current for power supply after receiving/assembling the power resource from different origins (i.e. wind power, solar energy or renewable energy and power generator to form hybrid energy); Turbine Control interface; Wind power inverter; Wind Power Charger; wind power facilities monitoring system; Industrial automation solutions; lighting power driver; lighting controller; Two Phase Flow Heat Sink and Thermal Module; Heat Sink; Start Drivers for Electric vehicles; Vehicle Control Unit (VCU) For EV; Hybrid Control Unit ( HCU) for EV; Energy Monitoring Device; industrial automation solution devices, namely Motion control network, Ethernet Communication Devices, communication converters, Variable Frequency Drives (VFD), Machine Vision Inspection System; Tire Pressure Monitoring System (TPMS ) for Vehicle; all the aforesaid not including installation devices for security purposes related to electrical constructions, as securings and also not including installation devices for controlling electrical constructions, as switches and sockets.

Class 11: Apparatus for, heating which are constituent parts of the goods stated in class 11, steam generating, cooking, refrigerating, drying, ventilating; Precision Cooling; streetlight; lighting fixture and installations, namely, industrial lights, agriculture lights, fishing lights, panel lights, light modules, can-lights, flooding lights, and architecture lights for purpose of illuminating the surface of constructions only, using basic light fixtures without aesthetic designs; Light bulbs; Projector lamps; Luminous tubes for lighting; Lighting apparatus for vehicles; Lighting tubes; Safety lamps; Torches light; Automobile lights; Pocket lamps; Air conditioners for vehicles; Fans [air conditioning]; Fans [parts of air conditioning installations]; Heat exchangers; Air conditioning apparatus; Installations for air Conditioning; Air conditioning apparatus; Ventilation installations and apparatus; Air cooling apparatus; Air cooling device; Air conditioners for vehicles; Beverages cooling apparatus; Refrigerating apparatus and machines; Refrigerating containers; Ice machines and apparatus; Refrigerators; Refrigerating appliances and installations; Refrigerating Display cabinets; Ventilation apparatus; Ventilation [air-conditioning] installations for vehicles; Air purifying apparatus and machines; Ventilation hoods; ventilation fan; ventilation dryer; ventilation fan with heater; Air reheaters which are constituent parts of the goods stated in class 11; Air Driers; Drying apparatus; Desiccating apparatus; Drying apparatus and installations; air circulation equipment; air circulation fan; Electric Fans for personal use; range hoods; Extractor hoods for kitchens; Extractor machines for kitchens; Air mover module; Cooling appliances and installations; Gas Induced and mixed blower; Cooling devices and machines; Blower, including DC Motor Blower; Air to Air Heat Exchanger; Liquid Heat Exchanger; Smart Heat Exchanger; DC Fan; AC Fan; Fan Tray Module; Thermo-Electric Cooling (TEC) Cooler Device; TEC Cooler Module; energy recycle equipment, namely waste gas reheating apparatus; Axial fans; Blower fans; Crossflow fans; Fan and Heat Sink Cooler or Module; Wind and Solar Hybrid Energy outdoor/indoor lighting apparatus used for industrial lights, agriculture lights, fishing lights, panel lights, light modules, canlights, flooding lights, and architecture lights for purpose of illuminating the surface of constructions only, using basic light fixtures without aesthetic designs; Fans for automotive air conditioning; lamps; Electric lamps; Fairy lights for festive decoration; Searchlights; Lamp Reflectors; Light diffusers, all used for industrial lights, agriculture lights, fishing lights, panel lights, light modules, can-lights, flooding lights, and architecture lights for purpose of illuminating the surface of constructions only, using basic light fixtures without aesthetic designs.

In the opposition stage, the applicant deleted Class 37 and limited the list of goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing; none of the aforesaid goods for use in the medical field’. Accordingly, the contested goods are the following:

Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; data processing equipment, computers; all of these goods being other than instruments for non-destructive testing; none of the aforesaid goods for use in the medical field.

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.

The contested computers; data processing equipment are identically contained in the opponent’s list of goods. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity are a broad category of goods used for managing and controlling electricity. As such, they contain the opponent’s more specific goods also used for similar purposes. Since the Opposition Division cannot dissect ex officio the broad category the contested goods, they are considered identical to the opponent’s relevant goods such as, for example, rectifier; control panel [electricity]; power inverter; voltage regulator; power regulator. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested teaching apparatus and instruments overlap with the opponent´s data processing equipment, as these contested goods also include some of the opponent’s goods such as multi-media projector; electronic projector. These goods of the opponent can be and usually are used for educational purposes, too. Since the Opposition Division cannot dissect ex officio the broad category the contested goods, they are considered identical to these goods of the opponent. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested nautical apparatus and instruments include a wide range of goods used in ships and, as such, they can contain the opponent’s radio-frequency (RF) modules; intercommunications apparatus given that these goods of the opponent are often used and, in fact, can be essential for radio communication in ships. Since the Opposition Division cannot dissect ex officio the broad category the contested goods, they are considered identical to these goods of the opponent. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested measuring apparatus and instruments include a wide range of goods and, as such, they can contain the opponent’s temperature controllers; pressure sensors; timer/counter/tachometer; electrical sensors for measuring solar radiation which are all used for measuring, too. Since the Opposition Division cannot dissect ex officio the broad category the contested goods, they are considered identical to these of the opponent’s goods. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested optical apparatus and instruments also include a wide range of audio-visual goods and, as such, they can contain several of the opponent’s related goods such as electronic pens [visual display units]; multi-media projector; electronic projector; projection screen. Since the Opposition Division cannot dissect ex officio the broad category the contested goods, they are considered identical to these of the opponent’s goods. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested photographic, cinematographic apparatus and instruments and the opponent’s data processing apparatus coincide partially (overlap) in digital photographic apparatus/instruments that process data. Therefore, these goods are identical. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested checking (supervision) apparatus and instruments are a broad category and covers the opponent’s electric monitoring apparatus; indicator. Since the Opposition Division cannot dissect ex officio the contested broad category, the goods must be considered to be identical. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The contested signalling apparatus and instruments are a broad category which the Opposition Division cannot dissect ex officio. Since they include several of the opponent’s related goods such as, for example, flashing lights; signal light; luminous signs; traffic light apparatus  these goods are identical. This finding remains valid even considering that the applicant limited its goods in Class 9 by adding ‘all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field.’

The remaining contested goods, namely scientific, surveying, life-saving, weighing apparatus and instruments; all of these goods being other than instruments for non-destructive testing, none of the aforesaid goods for use in the medical field are dissimilar to the opponent’s goods. These sets of goods differ in nature, purpose and method of use. They do not have the same producers or distribution channels and are neither in competition nor complementary. While it may be possible that some of the opponent’s goods are either used together with or serve as a component for the some of the contested goods, this is not a sufficiently close link for the Opposition Division to find any degree of similarity. In addition, since the  remaining goods of the opponent in Classes 7 essentially cover machinery and tools and those in Class 11 cover heating, refrigerating and lighting apparatus, it must be concluded that the contested goods are also dissimilar to the opponent’s goods in Class 7 and 11.

2. Relevant public — degree of attention

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

In the present case, the goods found to be identical are directed both at the public at large and at business customers with specific professional knowledge or expertise.

The degree of attention may vary from average (for most of the goods) to high (in case of electricity-related apparatus where safety aspects are very important).

 

---

3. The signs

	DELTA
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 contested sign consists of the word ‘DELTA’ meaning either a Greek letter or a landform created by sediments of a river before it enters a sea or lake. These meanings have no relation to the relevant goods, which makes the sign distinctive.

The earlier mark is a figurative mark consisting of the word ‘DELTA’ with its first and last letter represented in a fanciful way, and of a device made up of a black triangle with a ring-shaped object inside. None of these elements are more dominant than the other. The device is for decorative purposes while the word ‘DELTA’ and its distinctiveness is explained above.

Visually, the signs coincide in ‘DELTA’ which is the only element of the contested sign and the most distinctive element of the earlier mark. They differ in the additional device and the typeface used in the earlier mark. These differing components are mostly for decorative purposes and cannot counteract the impact of the coincidence of the words, in particular because when signs consist of both verbal and figurative components, in principle, the verbal component of the sign usually has a stronger impact on the consumer than the figurative component. This is because the public does not tend to analyse signs and will more easily refer to the signs in question by their verbal element than by describing their figurative elements (14/07/2005, T 312/03, Selenium-Ace, EU:T:2005:289, § 37; decisions of 19/12/2011, R 233/2011 4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011 5, Jumbo(fig.) / DEVICE OF AN ELEPHANT (fig.), § 59). Therefore, the signs are similar to an average degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs is identical since their only word is ‘DELTA’. Therefore, the signs are identical.

Conceptually, reference is made to the previous assertions concerning the semantic content conveyed by the signs. As the earlier mark’s device does not convey any concept, the signs are identical as they coincide in their only meaningful, conceptually relevant component. 

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

4. Distinctiveness of the earlier mark

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

The opponent did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, the assessment of the distinctiveness of the earlier mark will rest on its distinctiveness per se. In the present case, the earlier trade mark as a whole has no meaning for any of the goods in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

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

Account is also 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). Furthermore, 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).

Some of the goods are identical while some are dissimilar. The signs are visually similar and aurally and conceptually identical. They only differ in secondary, decorative elements that cannot influence consumer perception while they coincide in the contested sign’s only element which also has an independent distinctive role in the earlier mark.

On 18/04/2017 the applicant sent its observations to the opponent’s submissions. However, its letter is in German, with no translation provided. Since the language of the proceedings is English, the applicant’s observations must be disregarded.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the public and therefore the opposition is partly well-founded on the basis of the opponent’s European Union trade mark registration No 10 662 021.

It follows from the above that the contested trade mark must be rejected for the goods found to be identical to those of the earlier trade mark.

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 and services cannot be successful.

The opponent has also based its opposition on European Union trade mark registration No 740 589 ‘DELTA’ and Portuguese trade mark registration No 378 296 ‘DELTA’. Since these marks cover 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.

COSTS

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 109(3) 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 for only some 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

Cynthia DEN DEKKER

Ferenc GAZDA

Birgit FILTENBORG

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.