CANCELLATION No 12 050 C (INVALIDITY)

Mundipharma AG, St. Alban-Rheinweg 74, 4020 Basel, Switzerland (applicant), represented by Elkington and Fife LLP, Prospect House, 8 Pembroke Road, Sevenoaks, Kent TN13 1XR, United Kingdom (professional representative)

a g a i n s t

Acura Pharmaceuticals, Inc., 616 N. North Court, Suite 120, Palatine, Illinois 60067, United States of America, represented by Insignia IP Services Limited, Compass House, Vision Park, Chivers Way, Histon, Cambridge CB24 9AD, United Kingdom (professional representative).

On 08/03/2017, the Cancellation Division takes the following

DECISION

1.        The application for a declaration of invalidity is upheld.

2.        European Union trade mark No 13 955 935 is declared invalid in its entirety.

3.        The EUTM proprietor bears the costs, fixed at EUR 1 150.

REASONS

The applicant filed an application for a declaration of invalidity against all the goods of European Union trade mark No 13 955 935. The application is based on European Union trade mark registration No 11 333 887. The applicant invoked Article 53(1)(a) EUTMR in conjunction with Article 8(1)(b) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that there is a likelihood of confusion because the signs are similar and the goods are identical.

In its reply, the EUTM proprietor requests that the applicant submit proof of use of the earlier EUTM. It argues that, although the earlier EUTM had not been registered for more than five years at the filing date of the application for invalidity, it should be considered subject to the use requirement because it is the same trade mark as EUTM No 3 230 761, which was filed for the same goods by the applicant and registered on 04/07/2008. The EUTM proprietor claims that the applicant’s more recent EUTM, on which the invalidity action is based, was filed only with a view to artificially extending the grace period and enabling the applicant to enforce its trade mark against younger trade marks. In support of its allegations, the EUTM proprietor refers to previous decisions of the Office in which the request for proof of use was deemed admissible in comparable circumstances. It also mentions that the issue of ‘defensive or strategic filings’ was raised before the Court.

The EUTM proprietor states explicitly that the applicant’s re-filing practice amounts to bad faith and is an abuse of the EUTM law. The EUTM proprietor’s arguments in this regard will be developed in more detail below.

Concerning the likelihood of confusion between the trade marks at issue, the EUTM proprietor emphasises that the signs have different prefixes (‘OXY’ versus ‘OXAY’) and that the prefix ‘OXY’ of the earlier mark, ‘OXYDOL’, will allow the public to differentiate between the signs because it conveys the concept of ‘oxygen’, which is not present in its own mark, ‘OXAYDO’. It considers that, aurally, the signs do not have significant similarities, despite their coinciding initial, short sounds (/OX/), because these initial sounds are followed by a long double vowel sound (/AY/) in the contested mark, which contrasts with the short /Y/ sound in the earlier mark. Conceptually, it claims that ‘OXAYDO’ has no meaning in the European Union, whereas ‘OXYDOL’ is composed of the elements ‘OXY’ and ‘DOL’, which are both meaningful in relation to pharmaceuticals. It indicates that the prefix ‘OXY’, when used for analgesics, is likely to be understood as short for ‘oxycontin’ (which is a narcotic analgesic). It quotes definitions from English dictionaries indicating that ‘oxy’ is used in the formation of nouns with the meanings of, inter alia, ‘sharp’, ‘acute’, ‘keen’, ‘pointed’ and ‘acid’, from which it infers that the prefix will be perceived by the relevant public as indicating that the medicine marketed under the earlier mark is intended for treating acute pain. It adds that ‘DOL’ means ‘pain’ in German and is also a ‘unit for the measurement of pain intensity’ in English. It infers from the foregoing that ‘OXYDOL’ is a very weak or even descriptive trade mark for analgesics. It adds that the earlier mark’s scope of protection is not increased by any reputation, as it has not been used.

The EUTM proprietor further argues that, despite being analgesics, the goods marketed under the trade marks are different. It explains that the ‘OXYDOL’ products are oxycodone-based analgesics and that oxycodone is a highly addictive, narcotic drug for the treatment of acute and chronic pain. In contrast, its own ‘OXAYDO’ products are based on an ‘abuse deterrent’ technology, intended precisely for the purpose of avoiding the dangers of misusing the ‘oxycontin’ analgesic. The EUTM proprietor also provides information regarding the approval process and the licensing of its ‘OXAYDO’ product, highlighting that it is the first and only approved ‘immediate-release oxycodone product designed to deter abuse, indicated for the management of acute and chronic moderate to severe pains, where the use of an opioid analgesic is appropriate’.

The EUTM proprietor alleges that ‘OXYDOL’ is used as a trade mark for a well-known laundry product and that the Office should take into account that the name is therefore unsuitable for a medicine.

In view of all the foregoing, and after stating that the degree of attention of the public is high in relation to the goods at issue, the EUTM proprietor refutes the existence of a likelihood of confusion and requests that the application for invalidity be refused.

In its reply, the applicant stresses that the goods are identical, notwithstanding the different wording, and that the comparison must be carried out for the goods as registered, irrespective of their actual use on the market.

As far as the signs are concerned, the applicant argues that they are visually and aurally highly similar, as they are of the same length and have in common five letters/sounds in the same order and positions. It rebuts the EUTM proprietor’s argument that the prefix ‘OXY’ in ‘OXYDOL’ will allow the public to differentiate between the signs because, first, ‘OXY’ and ‘OXAY’ are very similar and, second, consumers are not likely to perceive ‘OXY’ as a reference to ‘oxycontin’ (which it explains is another trade mark) or a sharp, acute pain, let alone a ‘unit of pain’. In its opinion, neither sign has a meaning; therefore, the earlier mark has an average degree of distinctiveness.

In its conclusion, the applicant stresses that there is no need to establish that all actual or potential consumers are likely to be confused, since a likelihood of confusion on the part of a significant portion of the public is sufficient. It argues that through a global appreciation of all the factors of the case, namely the facts that the signs are highly similar, the earlier mark is of average distinctiveness and the goods are identical, and bearing in mind the principle of interdependence between these factors, it can be concluded that there is a likelihood of confusion between the trade marks at issue. The applicant adds that such a conclusion is further supported by the fact that consumers rarely have the chance to make a direct comparison between different marks, but must trust in their imperfect recollection of them. In view of the foregoing, the applicant requests that the contested trade mark be declared invalid and that the costs be awarded in its favour.

In its final submission, the EUTM proprietor reiterates its previous arguments, particularly concerning the request for proof of use and the Office’s communication in this regard that the request is not acceptable. It adds that the signs are short and will easily be remembered, especially the differences between them, in particular as regards their beginnings, ‘OXY’ versus ‘OXAY’.

PROOF OF USE

According to Article 57(2) and (3) EUTMR (in the version in force at the time of filing of the invalidity application), if the EUTM proprietor so requests, the applicant shall furnish proof that, during the five-year period preceding the date of the application for a declaration of invalidity, 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 applicant cites as justification for its application, 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. If, on the date of filing or, where applicable, priority of the contested EUTM, the earlier mark had been registered for not less than five years, the applicant must submit proof that, in addition, the conditions set out in Article 42(2) EUTMR were satisfied on that date.

The same provision states that, in the absence of such proof, the application for a declaration of invalidity shall be rejected.

The EUTM proprietor requested that the applicant submit proof of use of European Union trade mark No 11 333 887 on which the application is based.

As stated above, according to Article 57(2) and (3) EUTMR, the earlier mark can only be subject to the use obligation when it has been registered for not less than five years on the date of the application for a declaration of invalidity.

The present application for a declaration of invalidity was filed on 05/11/2015 and earlier trade mark No 11 333 887 was registered on 12/04/2013.

Therefore, the request for proof of use was considered inadmissible by the Office, which informed the parties accordingly on 11/02/2016.

However, the EUTM proprietor disagrees and claims that the earlier trade mark should be considered under the use requirement, notwithstanding the fact that it was registered less than five years before the filing of the invalidity action, because it is identical to another trade mark filed in 2003 by the applicant, for the same goods in the same territory, which was registered in 2008 and which is still in force.

In this respect, the EUTM proprietor argues that the applicant has re-filed the same trade mark for the sole purpose of avoiding the proof of use requirement when invoking its trade mark against later marks, which it considers to be contrary to the EUTMR.

In support of its contentions that the proof of use request is admissible, the EUTM proprietor refers to case-law in which the proof of use request was considered admissible based on the fact that the earlier marks invoked, which were still in the grace period, were re-filings of previous, identical trade marks, and that those re-filings were intended for the sole purpose of avoiding the requirement of genuine use (15/11/2011, R-1785/2008-4, Pathfinder; 13/02/2014, R-1260/2013-2, KABELPLUS/CANAL PLUS). It also indicates that the issue of strategic or defensive filings was raised and objected to by Advocate General Ruiz-Jarabo Colomer in the opinion delivered on 02/07/2002 in relation to the request for a preliminary ruling, which led to the Court’s judgment of 11/03/2003, C-40/01, Minimax, EU:C:2003:145.

The EUTM proprietor quotes the tenth recital of the EUTMR to support its allegations that the requirement of use is crucial to the EUTM system. It further contends that the applicant’s re-filing of the same trade mark prevents it from exercising its legal right of defence as provided for in Article 57 EUTMR, namely to request proof of use of an EUTM that has been registered for more than five years.

The EUTM proprietor also indicates that the EUTMR makes no provision for, or even mention of, the possibility for applicants to file identical trade marks. It puts forward that, in the present case, the applicant’s ‘duplicate filing’ is a fraudulent attempt at circumventing the use requirement and the sanctions for non-use under Article 42 and Article 57 EUTMR. It alleges that there could be no other reason for filing the same trade mark for the same goods in the same territory while the previous registration is still in force.

More generally, the EUTM proprietor emphasises that, in accordance with the twelfth recital of the EUTMR, administrative decisions of the Office should be taken with a view to implementing the trade mark law in relation to every trade mark; it quotes Article 75 EUTMR and Rule 52 EUTMIR establishing that the Office’s decision should state the reasons on which it is based; it refers to the Office’s guidelines, noting that they indicate that the reasoning and outcome of previous decisions should be duly considered and that the principles of sound administration and equal treatment should be respected.

The EUTM proprietor also argues that the fact that the applicant’s earlier trade mark was registered by EUIPO does not mean that it constitutes a ‘new’ EUTM, given that the same trade mark was previously applied for by the same applicant for the same goods and is still in force.

The Cancellation Division has duly considered the EUTM proprietor’s arguments but considers that the Office’s previous finding that the request for proof of use is inadmissible must be maintained.

First, it should be noted that, although it goes without saying that all decisions of the Office must respect the principles of sound administration and equal treatment, and that previous comparable decisions must be duly considered, the Office is not bound by its previous decisions, as each case has to be dealt with separately and with regard to its particularities. The outcome of any particular case will depend on specific criteria applicable to the facts of that particular case, including, for example, the parties’ assertions, arguments and submissions. This is clearly established in the part of the Office’s guidelines mentioned by the EUTM proprietor.

Furthermore, the practice that the Office is not bound by previous decisions has been fully supported by the Court, which stated that it is settled case-law that the legality of decisions is to be assessed purely by reference to the EUTMR, and not Office practice in earlier decisions (30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).

In the decisions referred to by the EUTM proprietor, the Boards of Appeal decided that the earlier marks invoked in the opposition proceedings were subject to the proof of use requirement notwithstanding the fact that they had been registered for less than five years at the date of publication of the contested EUTMA. The Boards of Appeal based the decisions on the fact that the earlier marks in question were duplicates of previous identical marks that were subject to the use requirement and had been filed for the sole purpose of avoiding this requirement.

According to the Cancellation Division, the factual circumstances of the case in 15/11/2011, R-1785/2008-4, Pathfinder, differ from those of the present case: the Boards of Appeal found that the request for proof of use was admissible in that case because it was clearly demonstrated that the sole purpose of obtaining the mark on which the opposition was based was to artificially prolong the grace period during which there are no sanctions under the law for non-use. The Boards emphasised that the opponent itself had acknowledged that it had not used its previous trade mark registration on the market and that the registration in question had been dropped when the five-year period after registration was over. Those specific circumstances do not exist in the present case. The other case mentioned, 13/02/2014, R-1260/2013-2, KABELPLUS/CANAL PLUS, is more similar to the present case. However, in that case, the Boards reached the conclusion that three of the earlier marks invoked were ‘duplicate filings’, which, in the Cancellation Division’s view, introduces a marked difference from the present case, since it indicates more clearly that the opponent in the case in question had put in place a kind of systematic strategy to circumvent the use requirement.

In any case, the Cancellation Division notes that, in the more recent decision of 04/05/2015, R-2291/2013-2, Cuprofix, the circumstances of which are even more similar to the present case, the Boards of Appeal considered that an earlier trade mark also consisting of a re-filing of an identical previous trade mark was not subject to the use requirement. Indeed, the Boards emphasised that the circumstances in that case differed from those in the case of 15/11/2011, R-1785/2008, Pathfinder, as previously mentioned. Likewise, in the decision of 11/11/2011, R-2185/2010-2, NAVIGO (FIG MARK/NAVIGO), the Boards of Appeal indicated that the fact that the opponent might have repeatedly filed an identical application could not lead to an obligation of proof of use beyond the circumstances established by Article 42 EUTMR.

As regards the present case, it is clear that the relevant provisions of the EUTMR, bearing in mind the dates of registration of the earlier mark and of filing the application for invalidity, clearly lead to the finding that the earlier mark is not subject to the use requirement. Furthermore, as seen above, the existing case-law is not sufficiently consistent or comparable to the present case for the Cancellation Division to depart from the Office’s initial finding that the request for proof of use is inadmissible, as notified to the parties on 11/02/2016.

Contrary to the EUTM proprietor’s contentions, the fact that the EUTMR does not refer to duplicate filings cannot be interpreted as meaning that the EUTMR does not allow duplicate filings. Likewise, the fact that the twelfth recital of the EUTMR emphasises that the obligation of use is crucial to the protection of EU trade marks and the fact that this obligation is explicitly expressed in Article 15 EUTMR do not give any indication whatsoever as to the validity of ‘duplicate filings’, or the existence of a special regime of obligation of use for duplicate filings. Currently, no specific provisions exist, either in the EUTMR or in the Directive to approximate the laws of the Member States on trade marks, to prohibit re-filings of already registered trade marks. Indeed, notwithstanding the fact that the issue of duplicate filings has been raised in decisions of the Office and even, as mentioned by the EUTM proprietor, by Advocate General Ruiz-Jarabo Colomer, no specific provision regarding either the filing or the obligation of use of duplicate trade marks has been introduced in the new EUTMR which came into force recently, on 23/03/2016.

For the sake of completeness, concerning the EUTM proprietor’s argument that the applicant’s ‘duplicate filing’ precludes the right of defence against invalidity actions as provided for under Article 57 EUTMR, the Cancellation Division notes that the EUTMR provides for other procedures through which actions may be brought against ‘duplicate filings’. The Guidelines for examination in the Office, Part D, Cancellation, indicate, in the section concerning Article 52(1)(b) EUTMR (bad faith), that a situation that may be taken into account in order to assess whether the proprietor acted in bad faith is where an EUTM owner tries to artificially extend the grace period for non-use, for example by filing a repeat application of an earlier EUTM in order to avoid the loss of a right as a result of non-use.

In view of the foregoing, the Cancellation Division confirms the Office’s initial position that earlier EUTM No 11 333 887 is not subject to proof of use.

LIKELIHOOD OF CONFUSION — ARTICLE 53(1)(a) EUTMR IN CONJUNCTION WITH 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 application is based are the following:

Class 5:        Pharmaceutical preparations for human medical use, namely prescription analgesics.

The contested goods are the following, after a partial surrender of the contested trade mark:

Class 5:        Pharmaceutical preparations, namely, immediate-release oxycodone hydrochloride for pain relief in tablet form.

It should be noted that the term ‘namely’, used in both specifications, is exclusive and restricts the scope of protection to only the specifically listed goods.

Furthermore, the two conflicting lists of goods must be compared as they are registered (24/11/2005, T-346/04, Arthur et Félicie, EU:T:2005:420, § 35) and not as they are claimed to be used. Therefore, the EUTM proprietor’s arguments regarding the fact that the goods are dissimilar because of their specific intended purpose is irrelevant to the extent that this purpose is not reflected in the specification.

Contested goods in Class 5

The word ‘analgesics’ in the applicant’s specification refers to ‘drugs which relieve or reduce pain’ (information extracted from Oxford English Dictionary on 21/02/2017 at www.oed.com). The contested goods are specific medicines for pain relief containing oxycodone hydrochloride, and oxycodone is defined in medical dictionaries as ‘an opioid analgesic derived from morphine’ (information extracted from The Free Dictionary on 21/02/2017 at http://medical-dictionary.thefreedictionary.com, as an example).

Therefore, the contested goods are included in, or at least overlap with, the applicant’s goods; therefore, they are identical.

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 and at professionals in the medical sector.

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

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

Given that the general public is more prone to confusion, the examination will proceed on this basis.

3. The signs

OXYDOL	OXAYDO
Earlier trade mark	Contested trade mark

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, bearing in mind 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 proceedings for a declaration of invalidity against any 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, by analogy). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to declare the contested trade mark invalid.

In the present case, the Cancellation Division finds it appropriate to focus the comparison of the signs on a part of the relevant public that will not associate either the earlier or the contested trade mark with a meaning, such as the Polish-speaking general public.

Both trade marks are word marks; therefore, there are no issues of visual dominance to be taken into account in the assessment of the similarity between the signs.

Both marks consist of a single verbal element. Those elements will not be associated with any meaning by the relevant public and are, therefore, of average distinctiveness.

Conceptually, since neither trade mark has a meaning for the relevant public, a conceptual comparison is not possible and the conceptual aspect does not influence the assessment of the similarity between the signs.

The EUTM proprietor argues that the earlier mark’s prefix ‘oxy’ may be associated with the word ‘oxygen’. However, this is not the case for the relevant public. For instance, in Polish, the English word ‘oxygen’ is ‘tlen’. Furthermore, the goods at issue are not related to the concept of ‘oxygen’.

The other meanings mentioned by the EUTM proprietor concern the English-speaking and German-speaking parts of the public and/or only a public of specialists in the medical sector. ‘DOL’ does not mean ‘pain’ in Polish and ‘OXY’ is not likely to be perceived as meaning ‘acute’ or ‘sharp’ either.

Therefore, the EUTM proprietor’s argument that the signs differ in the concepts conveyed by the earlier trade mark is to be set aside.

Visually, the signs are of the same length, that is, six letters (forming one word), five of which they have in common in the same order (‘OX*YDO*’). The fact that their first two letters are the same is of relevance, given that the relevant public’s attention usually focuses on the beginning of signs. The coinciding letters ‘YDO’ are also easily perceptible because they are grouped together in the same order. The fact that the position of those three letters is not the same in the signs, namely that they are shifted one position to the right in the earlier mark, does not introduce a significant visual difference. The differing letters, ‘A’ in the contested sign and ‘L’ in the earlier mark, are not sufficient to counteract the similarity caused by the coinciding sequences ‘OX’ and ‘YDO’. Therefore, the signs are similar to an average degree.

The EUTM proprietor argues that, because the earlier mark is short, the public will immediately perceive the differences between the signs. However, in accordance with the Office’s current standards, the earlier mark, which is formed by six letters, is not short (short marks are those consisting of up to three letters).

Aurally, the signs will be pronounced as /o-ksy-dol/ and /o-ksa-y-do/. Only the first syllable, /o/, is the same, but the signs include several other sounds in the same order. The syllables /ksy/ of the earlier mark and /ksa/ of the contested mark are similar, as are the syllables /dol/ and /do/. The contested trade mark includes the additional syllable /y/, resulting in it having a different rhythm and intonation from the earlier mark, but, on the other hand, this sound /y/ is also present in the earlier mark and also  before the sounds /do/. The additional sound /l/ in the earlier mark is not striking because of its position at the end of the mark, and the impact of the difference in the additional sound /a/ of the contested mark is lessened by the fact that it is placed between sounds that the signs have in common (/oks/ and /ido/).

In view of the above, it is concluded that the signs are aurally 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 applicant did not explicitly claim that its mark is particularly distinctive by virtue of intensive use or reputation.

Consequently, 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 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

Evaluating likelihood of confusion implies some interdependence between the relevant factors.

In the present case, the factors to be taken into consideration, as previously established, are that the goods are identical and that the signs are visually and aurally similar to an average degree and do not have any meanings that could help the relevant public to differentiate between them. Furthermore, the earlier mark enjoys a normal scope of protection owing to its average degree of distinctive character. All of those factors weigh in favour of a likelihood of confusion, even if the degree of attention paid is relatively high.

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).

Considering all the above, there is a likelihood of confusion on the part of the public, that is, at least the Polish-speaking general public and, more generally, the general public that attributes no meanings to the signs. 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 declare the contested trade mark invalid.

As the present proceedings do not concern the validity of the earlier trade mark, the EUTM proprietor’s argument regarding the fact that the name ‘OXYDOL’ is unsuitable for a medicine because the same trade mark is already used for a well-known laundry product is irrelevant and is, therefore, set aside.

Therefore, the application is well founded on the basis of the applicant’s European Union trade mark registration No 11 333 887. It follows that the contested trade mark must be declared invalid for all the contested goods.

COSTS

According to Article 85(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and (6) and Rule 94(7)(d)(iii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Justyna GBYL

Catherine MEDINA

Begoña URIARTE VALIENTE

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

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