OPPOSITION No B 2 452 830

Orthofix S.R.L., Via Delle Nazioni, 9, 37012 Bussolengo (Verona), Italy (opponent), represented by Botti & Ferrari S.R.L., Via Montebello, 2, 40121 Bologna, Italy (professional representative)

a g a i n s t

Orthofit Verkaufs GmbH, Riedstrasse 1, 6343 Rotkreuz, Switzerland (applicant), represented by Gail & Kollegen Rechtsanwälte, Carl-Zeiss-Straße 3, 60388 Frankfurt am Main, Germany (professional representative).

On 20/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 452 830 is partially upheld, namely for the following contested goods:

Class 10: Orthopedic articles, in particular insoles

2.        European Union trade mark application No 13 194 774 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 13 194 774. The opposition is based on, inter alia, European Union trade mark registration No 11 234 085. 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.

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 11 234 085 since this trade mark is not subject to a request for a proof of use.

1. The goods and services

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

Class 5:        Spinal implants made of biological materials [living tissues]; medical implants, namely bone and cartilage implants made of biological materials [living tissues].

Class 10:        Medical and surgical apparatus and instruments, namely, medical and surgical instruments for use in orthopedic and spinal surgery; orthopedic implants and fixation devices; spinal and vertebral implants comprising artificial material; spinal fixation devices.

Class 41: Educational services, namely, medical education courses.

The contested goods are the following:

Class 10: Orthopedic articles, in particular insoles.

Class 25: Clothing, Footwear, in particular insoles, Headgear.

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

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’, 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 and services.

As a preliminary remark, it is to be noted that according to Article 28(7) EUTMR, goods or services shall not be 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 10

The contested orthopedic articles, in particular insoles are all sorts of items designed to be used by people with injuries or diseases affecting their bones and muscles. These articles include, but are not limited to, insoles. The contested goods, considering they are not limited to ‘insoles’, include, as a broader category, the opponent’s orthopedic implants and fixation devices. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

Contested goods in Class 25

The contested footwear, in particular insoles includes footwear and inserts for footwear which are specially designed to improve people’s comfort. There could conceivably be a link between these goods and the earlier goods in Class 10 as they all broadly aim to improve a person’s comfort and/or health. However, the earlier goods are very specific apparatus, instruments, implants and fixation devices designed for specific medical and surgical use. In fact, the opponent’s goods are highly technical products to be used in surgery and implanted in the human body to replace a missing joint or bone or to provide support. Consequently, the Opposition Division is of the opinion that these goods will not be provided by the same manufacturers, aimed at the same consumers, distributed through the same channels, and nor are they complementary or in competition with one another. These goods are therefore dissimilar.

The contested footwear, in particular insoles are also dissimilar to the earlier Spinal implants made of biological materials [living tissues]; medical implants, namely bone and cartilage implants made of biological materials [living tissues] in Class 5 for all the reasons given in the paragraph above, which can be applied here by analogy. Nor do these goods bear any connection whatsoever with the earlier Educational services, namely, medical education courses. As a starting point, there are numerous differences between goods and services. By their nature goods are generally dissimilar to services. This is because goods are articles of trade, wares, merchandise, or real estate. Their sale usually entails the transfer of title in something physical, i.e. movables or real estate. Services, on the other hand, consist in the provision of intangible activities. Fundamentally, the applicant's goods have a different purpose to the opponent's services.

Finally, as regards the remaining contested goods, clothing and headgear, these goods bear no link whatsoever with the earlier goods and services for all the reasons given above, which can be applied by analogy. The Opposition Division does not consider it necessary to repeat the arguments in detail for goods which are manifestly dissimilar.

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 at the public at large (for example, insoles) and also include specialised goods directed at business customers with specific professional knowledge or expertise.

In all cases, the degree of attention will be high as orthopaedic articles are not purchased on a frequent basis, likely to be fairly expensive and have an impact on the consumer’s health and wellbeing.

3. The signs

ORTHOFIX	Orthofit
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 prefix ‘ORTHO-‘ and the second elements ‘FIX/FIT’ are meaningful in English-speaking territories. Consequently, for the purposes of the conceptual comparison, the Opposition Division finds it appropriate to focus the comparison of the signs on the English-speaking part of the public.

The beginning of both signs, ‘ORTHO-‘, will, in conjunction with the particular goods and bearing in mind that the relevant public has a high degree of attention, be linked with ‘orthopaedics’, which means ‘the branch of medicine dealing with the correction of deformities of bones or muscles’. Bearing in mind that the relevant goods are orthopaedic articles, this element is weak for these goods.

‘FIX’ in the earlier mark will be understood as ‘fastening something securely’ and ‘FIT’ in the contested sign will be understood as ‘being of the right shape and size’. Each of these words may be seen as alluding to a notion. For example, ‘FIX’ brings to mind the notion that the opponent’s goods, such as implants, may be fastened securely in place, while the contested goods may be seen as being of the appropriate shape and size, for example, insoles.

Visually and aurally, the signs coincide in ‘ORTHO’ and ‘FI’. However, they differ in their final letters ‘X’ and ‘T’. Even though ‘ORTHO’ has been defined as weak in connection with the goods, the undeniable visual and aural coincidences between the signs cannot be ignored, reinforced further by the coinciding letters ‘FI’.

The first parts of the conflicting marks are identical. Consumers generally tend to focus on the first element of a sign when being confronted with a trade mark. This is justified by the fact that the public reads from left to right, which makes the part placed at the left of the sign (the initial part) the one that first catches the attention of the reader.

The difference in one letter at the end of the signs cannot detract from a finding of high similarity both visually and aurally.

Conceptually, although the signs as a whole do not have any meaning for the public in the relevant territory, the element ‘ORTHO’, included in both signs, will be associated with the meaning explained above. Although considered to be a weak element, since this prefix appears at the beginning of the signs, it will not be ignored and nor will the coincidence in meaning. Therefore, the signs 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.

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, despite the presence of weak element in the mark as stated above in section c) of this decision.

5. Global assessment, other arguments and conclusion

The signs have been found visually and aurally highly similar, and conceptually similar to an average degree. The goods have been found identical and dissimilar.

It is true that the signs coincide in a weak element, ‘ORTHO’, as explained above. Nevertheless, it is significant that the remaining letters in the signs, ‘FIX’ and ‘FIT’, almost coincide completely too. Even taking into account that English speakers will understand ‘FIX’ and ‘FIT’ as having different meanings and perhaps see them as alluding to concepts connected with the goods, the Opposition Division holds the view that consumers are likely to confuse the signs when placed on identical goods. The weak distinctive character of ‘ORTHO’ cannot detract from this as these letters appear at the beginning of the signs, leading to high visual and aural similarity.

Furthermore, 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).

It is true that the relevant consumer has been defined as having a high degree of attention. However, 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).

Overall, the Opposition Division considers that the signs are likely to be confused.

Considering all the above, the Opposition Division finds that there is a likelihood of confusion on 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. 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 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.

The opponent also based its opposition on the following earlier trade mark, which was not subject to a request for proof of use:

• EUTM No 11 234 184 for the figurative mark:

Since this mark covers the same scope of goods and services, 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.

Finally, the opposition was also based on the following earlier rights:

• EUTM No 1 300 482 for the figurative mark registered for:

Class 10: Surgical and orthopaedic instruments and apparatus, including fixing devices for long bone fractures, mini fixing devices for short bone fractures, extenders and compression devices for bones, periarticular rings, intramedullary nails for surgical purposes, such as nails for the femur, tibia, humerus and fibula, instruments for fixing intramedullary nails, screws for locking intramedullary nails to bones, bone screws and nails, fixing clamps for bone screws, drill bit guide templates and reduction nails: for bone fractures, metaphyseal clamps, surgical instruments, templates for bone prostheses, fracture reducers, pediatric compression devices, surgical drill bits, self-locking handles for bone fracture fixing devices and for reduction devices, apparatus for measuring bone thickness, instruments for measuring parameters for orthopaedic diagnosis, instruments for measuring the hardness of the callus, detectors and sensors for correct positioning and centring of orthopaedic apparatus and instruments; electronic apparatus, laser and optical-fibre instruments for orthopaedic surgery, including electronic instruments for measuring parameters for orthopaedic diagnosis, such as apparatus for measuring the hardness of the callus, magnetic, electromagnetic, radio frequency and/or infrared probes for correct positioning and centring of orthopaedic apparatus and instruments.

• International trade mark registration No 643 102 designating Spain, Czech Republic, Portugal, Austria, Romania, Bulgaria, Slovakia, Poland, Hungary, Croatia and Slovenia for the figurative mark registered for:

Class 10: Electronic apparatus and laser and optical fiber instruments for orthopedic surgery, including electronic devices for measuring parameters for orthopedic diagnosis, such as devices for measuring the stiffness of the callus, magnetic, electromagnetic, radio frequency and/or infrared probes for correctly positioning orthopedic apparatus and instruments; surgical- orthopedic instruments and devices, including fixators for long bone fractures, minifixators for small bone fractures, lengtheners and compressors for bones, periarticular rings , intramedullary nails for surgical use , including nails for femur, nails for tibia, humerus nails , fibula nails, instruments for securing an intramedullary nail to the bone, bone screws and nails, hand clamps, bone screw holder, guiding templates for bone drill bits and nails for reducing bone fractures, metaphysis hand clamps, surgical instruments, jigs for bone prostheses, fractures reducers, pediatric compressors, surgical drill bits, self-locking manipulators for fixators and reducers for bone fractures, measurement devices of bone size; parameter measurement devices for orthopaedic diagnosis, stiffness measurement devices of the callus, indicators and detectors for correctly positioning and aligning orthopedic apparatus and instruments.

• Benelux trade mark registration No 402 049 for the figurative trade mark  registered for:

Class 10: Orthopedic and surgical apparatus and instruments, parts thereof and accessories not included in other classes.

• German trade mark registration No 1 113 217 for the word mark ‘ORTHOFIX’ registered for:

Class 10: Orthopedic surgical devices and instruments , their parts and accessories, namely masks for the positioning of drill holes , guides of metal and / or plastic for drills and screws , shaft keys, keys for Allen screws , hammers, drills, pliers for the positioning of clamps , tools and electronic control measurement devices , as well as sterilization containers.

• French trade mark registration No 1 277 944 for the word mark ‘ORTHOFIX’ registered for:

Class 10: Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; Orthopedic articles; Suture materials.

• United Kingdom trade mark registration No 1 193 580 for the word mark ‘ORTHOFIX’ registered for:

Class 10: Surgical and orthopaedic apparatus and instruments and parts and fittings included in Class 10 for all the aforesaid goods.

• Italian trade mark registration No 394 332 for the word mark ‘ORTHOFIX’ registered for:

Class 10: Surgical, medical, dental and veterinary apparatus and instruments (including artificial limbs, eyes and teeth), and in particular apparatus and instruments for surgery, external fixators, prostheses, nails, screws, hammers, saws, positioning jigs, tools and apparatus, measurement devices.

• Greek trade mark registration No F 122 588 for the figurative mark registered for:

Class 10: Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopedic articles; suture materials.

• Danish trade mark registration No VR 1995 03272 for the figurative mark registered for:

Class 10: Surgical and orthopedic instruments and devices, including fixators for long bone fractures, mini-fixators for small bone fractures, lengtheners and compressors for bones, periarticular rings , intramedullary nails for surgical use , such as nails for femur, nails for tibia, humerus nails, fibula nails, instruments for securing an intramedullary nails, screws for fastening of an intramedullary nail to the bone, bone screws and bone screw holders, guiding templates for bone drill bits and nails for reducing bone fractures, metaphysis clamps, surgical instruments, molds and supports ( templates ) to the bone prostheses, fractures reducers, pediatric compressors, surgical drill bits, self-locking handles for bone fracture fixators and reducers; medical and surgical instruments in the form of measurement devices of bone size, parameter measurement devices for orthopedic diagnosis, stiffness measurement devices of the callus; detectors and sensors for correctly positioning and aligning orthopedic apparatus and instruments.

• Italian trade mark registration No 642 633 for the figurative mark registered for:

Class 10: Surgical and orthopedic instruments and devices, including fixators for long bone fractures, mini-fixators for small bone fractures, lengtheners and compressors for bones, periarticular rings , intramedullary nails for surgical use , such as nails for femur, nails for tibia, humerus nails , fibula nails, instruments for securing an intramedullary nail to the bone, screws for fastening of an intramedullary nail to the bone, bone screws and nails, bone screw holders, guiding templates for bone drill bits and nails for reducing bone fractures, metaphysis clamps, surgical instruments, jigs for bone prostheses, fractures reducers, pediatric compressors, surgical drill bits, self-locking handles for fixators and reducers for bone fractures, measurement devices of bone size; parameter measurement devices for orthopedic diagnosis, stiffness measurement devices of the callus, indicators and sensors for correctly positioning and aligning orthopedic apparatus and instruments.

These earlier marks are identical or almost identical to the one compared above. They cover fewer classes than the mark compared above. Nevertheless, some of them are registered for a wider range of goods in Class 10. All of these earlier marks were covered by a request for proof of use by the applicant. Since there are some contested goods, namely those in Class 25, which were found dissimilar, the Opposition Division considers it appropriate to carry out a swift examination of the evidence of use filed in order to ascertain whether any points of similarity can be found between the goods for which the earlier marks are used and the remaining dissimilar contested goods.

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 shall 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 shall be rejected.

The applicant requested that the opponent submit proof of use of all of the trade marks upon which the opposition is based, except for European Union trade mark registration No 11 234 184 and European Union trade mark registration No 11 234 085. The Opposition Division will first proceed to examining the evidence filed, which is the same for all the earlier marks.

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

The date of filing of the contested application is 22/08/2014. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in Spain, Czech Republic, Portugal, Austria, Romania, Bulgaria, Slovakia, Poland, Hungary, Croatia and Slovenia, the Benelux countries, Germany, France, the United Kingdom, Italy, Greece, Denmark and the European Union as a whole from 22/08/2009 to 21/08/2014 inclusive.

Furthermore, the evidence must show use of the trade marks for the goods on which the opposition is based. The goods have been listed in detail above and cover all sorts of products in Class 10.

According to Rule 22(3) EUTMIR, the evidence of use shall 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 01/12/2015, according to Rule 22(2) EUTMIR, the Office gave the opponent until 06/02/2016 to submit evidence of use of the earlier trade marks. This deadline was subsequently extended to 06/04/2016. On 04/04/2016, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following:

• Item 1: Three product catalogues covering the years 2008-2014.

• Item 2: Eight labels, dated 2008.

• Item 3: Nine instruction leaflets, dated from November 2009 to October 2014. They show use of the mark ‘ORTHOFIT’ on various orthopaedic articles such as: a humeral plate system, bone fixator, internal fixation system, limb reconstruction system, radiolucent rail, external fixation system, proximal humeral plate system, bone screws for external fixation system.  

• Item 4: 49 invoices addressed to clients in the United Kingdom. They are dated between 22 September 2009 and 17 September 2014.

• Item 5: 49 invoices addressed to clients in France. They are dated between 10 September 2009 and 10 September 2014.

• Item 6: 49 invoices addressed to clients in Italy. They are dated between 21 September 2009 and 15 September 2014.

• Item 7: 49 invoices addressed to clients in Germany. They are dated between 11 September 2009 and 19 September 2014.

• Item 8: 49 invoices addressed to clients in the Netherlands. They are dated between 28 September 2009 and 16 September 2014.

• Item 9: 49 invoices addressed to clients in Luxembourg. They are dated between 21 September 2009 and 26 September 2014.

• Item 10: 49 invoices addressed to clients in Denmark. They are dated between 17 September 2009 and 17 September 2014.

• Item 11: 33 invoices addressed to clients in Greece. They are dated between 9 September 2009 and 28 July 2014.

All the above-mentioned invoices mention the following goods: surgical and orthopaedic instruments and apparatus, such as external and internal limb fixators, external limb supports, limb reconstruction systems for adults and children, pelvic fixators, limb distractors, bone growth stimulators as well as parts, such as rings, nails, screws, screw guides, clamps, drills, drill bits, drill guides, hammers, wrenches, rails, rods, wire tensioners, forceps, spanners, lengtheners, plates as well as the relevant kits.

• Item 12: Official balances covering 2009, 2011, 2012 and 2014.

• Item 13: Advertisements, dated between 2009 and 2014, appearing in publications in various Member States of the European Union.

• Item 14: A general overview of the opponent’s company.

‘The Opponent owns and uses the domain name www.orthofix.it since October 13, 1999.

As reported on this website. Orthofix stemmed from the work of orthopedic researcher Giovanni De Bastiani of the University of Verona in Italy. Toward the end of the 1970s, Bastiani proposed the concept of “dynamization’, based on the natural ability of bone to repair itself He developed a modular system of external axial frame devices that could be fitted to a bone, allowing micromovement at the fracture site to stimulate bone healing. De Bastiani founded Orthoffix Sri in 1980 in order to continue the development of the device and launch it as a commercially available product.

Since their founding in 1980, Orthofix has enjoyed a proud history of successes by providing surgeons and their patients with innovative solutions for trauma and spine fusion.’

For reasons of procedural economy, the Opposition Division will assume that the evidence filed meets the criteria regarding time, place, extent, and nature of use for all of the earlier marks.

As regards the goods for which the earlier marks are used, the Opposition Division deems that the opponent has proved use of the earlier marks for the following goods in Class 10:

Humeral plate system, bone fixator, internal fixation system, limb reconstruction system, radiolucent rail, external fixation system, proximal humeral plate system, bone screws for external fixation system, surgical and orthopaedic instruments and apparatus, such as external and internal limb fixators, external limb supports, limb reconstruction systems for adults and children, pelvic fixators, limb distractors, bone growth stimulators as well as parts, such as rings, nails, screws, screw guides, clamps, drills, drill bits, drill guides, hammers, wrenches, rails, rods, wire tensioners, forceps, spanners, lengtheners, plates as well as the relevant kits.

The contested goods which were found dissimilar above are the following:

Class 25: Clothing, Footwear, in particular insoles, Headgear.

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.

It is clear that the earlier goods bear no connection whatsoever to the contested goods. The earlier goods are highly specialised orthopaedic parts and devices to be used internally and externally in processes of bone healing and dealing with bone trauma and disease. The contested goods consist of garments to be worn on the body and feet to protect a person from the elements. The opponent argues that when a person has an orthopaedic device placed on a part of his or body, special clothing and footwear will need to be worn. This argument, while true to some extent, cannot lead to a finding of similarity between the goods. It is quite clear that the earlier goods and the contested goods will derive from different manufacturers, be aimed at different consumers, serve different purposes, will be distributed through different channels and are not in competition with one another or complementary.

Therefore, the other earlier rights invoked by the opponent cover goods which are clearly different to those applied for in the contested trade mark.  Consequently, the outcome cannot be different with respect to goods for which the opposition has already been rejected; no likelihood of confusion exists with respect to those goods.

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 shall 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

Vít MAHELKA

Lucinda CARNEY

Vanessa PAGE

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.