OPPOSITION No B 2 736 240

Adler Modemärkte AG, Industriestr. Ost 1-7, 63808 Haibach, Germany (opponent), represented by Adler Modemärkte AG, Laura Kohm, Industriestr. Ost 1-7, 63808 Haibach, Germany (employee representative)

a g a i n s t

Giovanni Vilardi, Via Monte delle Gioie n. 24 sc. B int. 20, 00199 Roma, Italy (applicant), represented by Gennaro Cirillo, Via Santa Lucia 15, 80132 Napoli, Italy (professional representative).

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

DECISION:

1.        Opposition No B 2 736 240 is partially upheld, namely for the following contested goods:

Class 18:        Walking sticks; Vanity cases, not fitted; Traveling trunks; Casual bags; Slings for carrying infants; Beach bags; Sport bags; Chain mesh purses; Purses; Handbags; Travelling sets [leatherware]; Satchels; Briefbags; Cases, of leather or leatherboard; Umbrella covers; Parasols; Umbrellas; Credit card cases [wallets]; Visiting card holders; Card cases [notecases]; Wallets; Music cases; Bags [envelopes, pouches] of leather, for packaging; Bags for campers; Sport bags; Holdalls; Bags for climbers; Cases, of leather or leatherboard; Valises; Attache cases; Attache cases; Garment bags for travel; Backpacks.

Class 25:        Rainproof clothing; Clothing of imitations of leather; Leather clothing; Motorists’ clothing; Cyclists’ clothing; Clothing for gymnastics; Gowns; suit sets; Pinafore dresses; Bathrobes; Clothing; Bandanas (scarves); Bibs, not of paper; Caps (headwear); Berets; Underwear; Sweat-absorbent underwear; Boas [necklets]; Teddies (undergarments); Stocking suspenders; Corsets; Galoshes; Skull caps; Footwear; Training shoes; Stockings; Sweat-absorbent stockings; Socks; Breeches; Swimming trunks; Albs; Shirts; Short-sleeve shirts; Bodices [lingerie]; Sports singlets; Hats; Top hats; Paper hats (clothing); Coats; Hoods (clothing); Jackets (Stuff -) [clothing]; Chasubles; Belts [clothing]; Money belts (clothing); Tights; Collars (clothing); Detachable collars; Camisoles; Headgear (for wear); Layettes [clothing]; Corselets; Swimming costumes; Masquerade costumes; Beachwear; Neckties; Ascots; Swimming caps; Shower caps; Knickers; Headbands for clothing; Pocket squares; Scarves; Gabardines (clothing); Gaiters; Jackets [clothing]; Stocking suspenders; Fishing vests; Neck scarfs [mufflers]; Jackets (Stuff -) [clothing]; Fishermen’s jackets; Skirts; Aprons [clothing]; Aprons (clothing); Pinafore dresses; Girdles; Gloves [clothing]; Mittens; Ski gloves; Ready-to-wear clothing; Paper clothing; Knitwear [clothing]; Jersey clothing; Leg warmers; Leggings (trousers); Liveries; Maillots; Hosiery; Sweaters; Sweaters (pullovers); Muffs [clothing]; Maniples; Pelerines; Mantillas; Sleep masks; Skorts; Cowls [clothing]; Boxer shorts; Briefs; Babies’ pants [clothing]; Wetsuits for water-skiing; Waistcoats; Trousers; Mules; Ear muffs [clothing]; Parkas; Pelisses; Furs (clothing); Pyjamas; Wristbands clothing; Ponchos; Pullovers; Stocking suspenders; Sock suspenders; Brassieres; Sandals; Bath sandals; Saris; Sarongs; Neck scarfs [mufflers]; Leg warmers; Footmuffs, not electrically heated; Footwear; Espadrilles; Bath slippers; Gymnastic shoes; Beach shoes; Football boots; Training shoes; Ski boots; Shawls; Sashes for wear; Neck scarfs [mufflers]; Wimples; Insoles; Topcoats; Outerclothing; Petticoats; Knee-high stockings; Slips (undergarments); Ankle boots; Lace boots; Boots; Stoles (fur); Studs for football boots; Tee-shirts; Togas; Turbans; Clothing, suits; Uniforms; Valenki [felted boots]; Veils (clothing); Robes; Visors [hatmaking]; Wooden shoes.

2.        European Union trade mark application No 15 270 895 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 15 270 895. The opposition is based on European Union trade mark registration No 11 419 942. The opponent invoked Article 8(1)(b) EUTMR.

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

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

1. The goods

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

Class 18:        Goods of leather and imitations of leather, not included in other classes, namely bags and other containers not specifically designed for the objects being carried, and small leather goods, in particular purses, pocket wallets, key wallets; trunks and travelling bags; parasols, umbrellas, walking sticks.

Class 25:        Clothing, footwear, headgear.

The contested goods are the following:

Class 18:        Walking sticks; Umbrella sticks; Vanity cases, not fitted; Traveling trunks; Casual bags; Slings for carrying infants; Beach bags; Sport bags; Chain mesh purses; Purses; Handbags; Travelling sets [leatherware]; Satchels; Briefbags; Cases, of leather or leatherboard; Umbrella covers; Walking cane handles; Umbrella handles; Suitcase handles; Parasols; Umbrellas; Credit card cases [wallets]; Visiting card holders; Card cases [notecases]; Wallets; Music cases; Bags [envelopes, pouches] of leather, for packaging; Bags for campers; Sport bags; Holdalls; Bags for climbers; Cases, of leather or leatherboard; Frames for umbrellas or parasols; Handbag frames; Valises; Attache cases; Attache cases; Garment bags for travel; Backpacks.

Class 25:        Rainproof clothing; Clothing of imitations of leather; Leather clothing; Motorists’ clothing; Cyclists’ clothing; Clothing for gymnastics; Gowns; suit sets; Pinafore dresses; Bathrobes; Non-slipping devices for footwear; Clothing; Bandanas (scarves); Bibs, not of paper; Caps (headwear); Berets; Underwear; Sweat-absorbent underwear; Boas [necklets]; Teddies (undergarments); Stocking suspenders; Corsets; Galoshes; Skull caps; Footwear; Training shoes; Stockings; Sweat-absorbent stockings; Socks; Breeches; Swimming trunks; Albs; Shirts; Short-sleeve shirts; Bodices [lingerie]; Sports singlets; Hats; Top hats; Paper hats (clothing); Coats; Hoods (clothing); Frames (Hat -) [skeletons]; Jackets (Stuff -) [clothing]; Chasubles; Belts [clothing]; Money belts (clothing); Tights; Collars (clothing); Detachable collars; Camisoles; Headgear (for wear); Layettes [clothing]; Corselets; Swimming costumes; Masquerade costumes; Beachwear; Neckties; Ascots; Swimming caps; Shower caps; Knickers; Headbands for clothing; Pocket squares; Fittings of metal for footwear; Linings (Ready-made -) [parts of clothing]; Scarves; Gabardines (clothing); Boot uppers; Gaiters; Jackets [clothing]; Stocking suspenders; Fishing vests; Neck scarfs [mufflers]; Jackets (Stuff -) [clothing]; Fishermen’s jackets; Skirts; Aprons [clothing]; Aprons (clothing); Pinafore dresses; Girdles; Gloves [clothing]; Mittens; Ski gloves; Welts for footwear; Ready-to-wear clothing; Paper clothing; Knitwear [clothing]; Jersey clothing; Leg warmers; Leggings (trousers); Liveries; Maillots; Hosiery; Sweaters; Sweaters (pullovers); Muffs [clothing]; Maniples; Pelerines; Mantillas; Sleep masks; Skorts; Cowls [clothing]; Boxer shorts; Briefs; Babies’ pants [clothing]; Wetsuits for water-skiing; Waistcoats; Trousers; Mules; Ear muffs [clothing]; Parkas; Pelisses; Furs (clothing); Shirt yokes; Pyjamas; Wristbands clothing; Ponchos; Pullovers; Tips for footwear; Stocking suspenders; Sock suspenders; Brassieres; Heelpieces for stockings; Sandals; Bath sandals; Saris; Sarongs; Neck scarfs [mufflers]; Leg warmers; Footmuffs, not electrically heated; Footwear; Espadrilles; Bath slippers; Gymnastic shoes; Beach shoes; Football boots; Training shoes; Ski boots; Shawls; Sashes for wear; Neck scarfs [mufflers]; Wimples; Insoles; Topcoats; Outerclothing; Dress shields; Petticoats; Knee-high stockings; Slips (undergarments); Shirt fronts; Ankle boots; Lace boots; Boots; Stoles (fur); Footwear soles; Studs for football boots; Heels; Heelpieces for footwear; Pockets for clothing; Tee-shirts; Togas; Footwear uppers; Turbans; Clothing, suits; Uniforms; Valenki [felted boots]; Veils (clothing); Robes; Visors [hatmaking]; Cap peaks; Wooden shoes

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

The term ‘in particular’, 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’, also used in the applicant’s list of goods 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 18

Walking sticks; purses; parasols; umbrellas are identically contained in both lists of goods.

The contested vanity cases, not fitted; casual bags; beach bags; sport bags; chain mesh purses; handbags; travelling sets [leatherware]; satchels; briefbags; cases, of leather or leatherboard; credit card cases [wallets]; visiting card holders; card cases [notecases]; wallets; music cases; bags [envelopes, pouches] of leather, for packaging; bags for campers; sport bags; holdalls; bags for climbers; cases, of leather or leatherboard; valises; attache cases; attache cases; garment bags for travel; backpacks are identical to the opponent’s goods of leather and imitations of leather, not included in other classes, namely bags and other containers not specifically designed for the objects being carried, and small leather goods, in particular purses, pocket wallets, key wallets, because the opponent’s goods include, are included in or overlap with the contested goods.

The contested traveling trunks are included in the broad category of the opponent’s trunks. Therefore, they are identical.

The contested slings for carrying infants and the opponent’s goods of leather and imitations of leather, not included in other classes, namely bags and other containers not specifically designed for the objects being carried have the same distribution channels and purpose and target the same public. Moreover, they could originate from the same undertakings. Therefore, they are similar at least to an average degree.

The contested umbrella covers are likely to be considered accessories that complement the opponent’s umbrellas. Furthermore, they may be distributed by the same manufacturer or linked manufacturers and they target the same relevant public. Moreover, these goods can be found in the same retail outlets. Therefore, these goods are considered similar.

The contested umbrella sticks; walking cane handles; umbrella handles; suitcase handles; frames for umbrellas or parasols; handbag frames are all components of finished umbrellas, walking sticks, suitcases, parasols or handbags; their target public is different from that of the opponent’s umbrellas, walking sticks, trunks and travelling bags, parasols or goods of leather and imitations of leather, not included in other classes, namely bags and other containers not specifically designed for the objects being carried, as these components are intended for the manufacturers of these goods and not the final consumer. The contested goods have different distribution channels and a different relevant public from those of all of the opponent’s goods in Classes 18 and 25. Their purposes and methods of use are also different. Furthermore, they are not in competition and they do not originate from the same undertakings. Consequently, the contested goods are dissimilar to the opponent’s goods.

Contested goods in Class 25

The contested rainproof clothing; clothing of imitations of leather; leather clothing; motorists’ clothing; cyclists’ clothing; clothing for gymnastics; gowns; suit sets; pinafore dresses; bathrobes; bandanas (scarves); bibs, not of paper; underwear; sweat-absorbent underwear; boas [necklets]; teddies (undergarments); stocking suspenders; corsets; stockings; sweat-absorbent stockings; socks; breeches; swimming trunks; albs; shirts; short-sleeve shirts; bodices [lingerie]; sports singlets; coats; hoods (clothing); jackets (stuff -) [clothing]; chasubles; belts [clothing]; money belts (clothing); tights; collars (clothing); detachable collars; camisoles; layettes [clothing]; corselets; swimming costumes; masquerade costumes; beachwear; neckties; ascots; knickers; headbands for clothing; pocket squares; scarves; gabardines (clothing); gaiters; jackets [clothing]; stocking suspenders; fishing vests; neck scarfs [mufflers]; jackets (stuff -) [clothing]; fishermen’s jackets; skirts; aprons [clothing]; aprons (clothing); pinafore dresses; girdles; gloves [clothing]; mittens; ski gloves; ready-to-wear clothing; paper clothing; knitwear [clothing]; jersey clothing; leg warmers; leggings (trousers); liveries; maillots; hosiery; sweaters; sweaters (pullovers); muffs [clothing]; maniples; pelerines; mantillas; sleep masks; skorts; cowls [clothing]; boxer shorts; briefs; babies’ pants [clothing]; wetsuits for water-skiing; waistcoats; trousers; ear muffs [clothing]; parkas; pelisses; furs (clothing); pyjamas; wristbands clothing; ponchos; pullovers; stocking suspenders; sock suspenders; brassieres; saris; sarongs; neck scarfs [mufflers]; leg warmers; footmuffs, not electrically heated; shawls; sashes for wear; neck scarfs [mufflers]; topcoats; outerclothing; petticoats; knee-high stockings; slips (undergarments); stoles (fur); tee-shirts; togas; turbans; suits; uniforms; veils (clothing); robes are included in the broad category of the opponent’s clothing. Therefore, they are identical.

Clothing; footwear; headgear (for wear) are identically contained in both lists of goods (including synonyms).

The contested galoshes; training shoes; mules; sandals; bath sandals; espadrilles; bath slippers; gymnastic shoes; beach shoes; football boots; training shoes; ski boots; ankle boots; lace boots; boots; valenki [felted boots]; wooden shoes are included in the broad category of the opponent’s footwear. Therefore, they are identical.

The contested caps (headwear); berets; skull caps; hats; top hats; paper hats (clothing); swimming caps; shower caps; wimples; visors [hatmaking] are included in the broad category of the opponent’s headgear. Therefore, they are identical.

The contested insoles are important parts of footwear and it is not unlikely that they would be produced by the same manufacturers and distributed through the same channels as the opponent’s footwear. Furthermore, they are complementary and may have the same relevant public. Therefore, they are similar.

The contested studs for football boots are produced and/or sold by the same undertakings that manufacture ‘football boots’, which are a specific kind of the opponent’s footwear, and they target the same purchasing public. These goods have the same distribution channels and they are complementary, in the sense that studs can be worn only together with boots. Consequently, they are similar.

The contested non-slipping devices for footwear; frames (hat -) [skeletons]; fittings of metal for footwear; linings (ready-made -) [parts of clothing]; boot uppers; welts for footwear; shirt yokes; tips for footwear; heelpieces for stockings; dress shields; shirt fronts; footwear soles; heels; heelpieces for footwear; pockets for clothing; footwear uppers; cap peaks are dissimilar to all the opponent’s goods. They are all parts, components or fittings of final products and, therefore, the end users targeted by the contested goods are different from those targeted by the opponent’s goods, namely those working in the clothing, footwear and headgear industry and professional consumers. The opponent’s goods in Classes 18 and 25, by contrast, are final products that target the general public. Furthermore, these goods have different natures, methods of use, intended purposes and manufacturers, and they are sold in different retail outlets.

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. The degree of attention may vary from average to higher than average, depending on the specialised nature of the goods, the frequency of purchase and their price.

3. The signs

Earlier trade mark	Contested sign

The relevant territory is the European Union.

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

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

The common element ‘Eagle’ is meaningful in certain territories, for example, in those countries where English is understood. Consequently, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public. ‘Eagle’ will be understood by the relevant public as ‘a large bird of prey with a massive hooked bill and long broad wings, known for its keen sight and powerful soaring flight’ (information extracted from Oxford Dictionaries on 13/07/2017 at https://en.oxforddictionaries.com/definition/eagle). As it is not descriptive, allusive or otherwise weak for the relevant goods, it is distinctive.

The first word of the contested sign, ‘Insight’, means ‘the ability to perceive clearly or deeply; penetration’ (information extracted from Collins English Dictionary on 13/07/2017 at https://www.collinsdictionary.com/dictionary/english/insight). As it is not descriptive, allusive or otherwise weak for the relevant goods, it is distinctive.

Furthermore, the word ‘Style’ of the contested sign will be perceived as a meaningful term: ‘A particular design of clothing’ (information extracted from Oxford Dictionaries on 13/07/2017 at https://en.oxforddictionaries.com/definition/style). Bearing in mind that the relevant goods are in Classes 18 and 25, this element is weak for these goods. Consequently, it has limited distinctive character.

The relevant public will have no difficulties in perceiving the figurative element of the contested sign as the wings of an eagle. Since it will be associated with the same meaning as the earlier trade mark and the distinctive element ‘Eagle’ of the contested sign, it reinforces the concept that the conflicting signs have in common.

A negligible element refers to an element that due to its size and/or position is not noticeable at first sight or is part of a complex sign. In the contested sign, there is a verbal element above the word ‘Eagle’ that is barely perceptible. As this is likely to be disregarded by the relevant public, it will not be taken into consideration.

Conceptually, reference is made to the above conclusions regarding the semantic content of the conflicting signs. As the signs will be associated with the same meaning due to the coinciding distinctive element ‘Eagle’ (reinforced by the depiction of the eagle’s wings in the contested sign), and in view of the additional concepts – the word ‘Insight’ and the word ‘Style’ (which is of limited distinctiveness) – in the contested sign, the signs are considered conceptually similar to a high degree.

Visually, the signs have in common the word ‘Eagle’, which constitutes the only verbal element of the earlier mark and one of the distinctive elements of the contested sign. However, they differ in the frame in the earlier mark, which has a purely decorative function. The signs also differ in the stylisation, the words ‘Insight’ and ‘Style’ (the latter being of limited distinctiveness) and the figurative element (as described above) of the contested sign.

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

Therefore, the signs are visually similar to a lower than average degree.

Aurally, the pronunciation of the signs coincides in the syllables ‛Ea-gle’. The pronunciation differs in the sounds of the letters ‘Insight’ and ‘Style’ of the contested mark, which have no counterparts in the earlier sign. The differing component ‘Style’ is weak. Therefore, the signs are 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.

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

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. Furthermore, it is common practice in the relevant market for manufacturers to make variations of their trade marks, for example by altering the typeface or colours, or adding verbal or figurative elements to them, in order to denote new product lines, or to endow a trade mark with a new, fashionable image.

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).

In the present case, the contested goods are identical, similar or dissimilar to the opponent’s goods and target the public at large, whose degree of attention may vary from average to higher than average. The similarity between the signs (which are visually similar to a lower than average degree, aurally similar to an average degree and conceptually highly similar) results from the coinciding distinctive word ‘Eagle’. While the differences between the signs are not imperceptible, they are not sufficient to rule out any likelihood of confusion, even for consumers with a higher than average degree of attention. More specifically, there is a likelihood of association on the part of the relevant public which, although possibly aware of differences between the signs, may nevertheless still assume that they derive from the same undertaking or economically linked undertakings owing to their similarities.

Indeed, it is highly likely that the relevant consumer will perceive the contested sign as a sub-brand, a variation of the earlier mark, configured in a different way according to the type of goods that it designates (23/10/2002, T-104/01, Fifties, EU:T:2002:262, § 49). It is, therefore, conceivable that the relevant public will regard the goods designated by the conflicting signs as belonging to two ranges of goods coming from the same undertaking.

In its submissions, the applicant emphasises that according to the Office’s practice the first part of a sign is generally the part that primarily catches the consumer’s attention and has a significant influence on the overall impression made by the sign. Although consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, this line of reasoning cannot prevail in the present case. The coinciding element ‘Eagle’, which is the second verbal element in the contested sign, is reinforced by the figurative device, as explained in detail in section c) of this decision. Furthermore, the fact that the signs differ in some elements cannot outweigh the similarities in the present case, since some of the differing elements are of limited distinctiveness. Consequently, this argument cannot undermine the principle that an examination of the similarity of the signs must take account of the overall impression produced by those signs, because the average consumer normally perceives a sign as a whole and does not examine its individual details (27/06/2012, T-344/09, Cosmobelleza, EU:T:2013:40, § 52).

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on the part of the English-speaking part of the public and therefore the opposition is partly well founded on the basis of the opponent’s European Union trade mark registration No 11 419 942. 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.

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.

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

Richard BIANCHI

Carlos MATEO PÉREZ

Inés GARCÍA LLEDÓ

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.