OPPOSITION No B 2 489 758

Fábrica de Calçado Da Penha, Lda., Rua Padre Firmino, 115 – Penselo, 4800-115 Guimarães, Portugal (opponent), represented by Simões, Garcia, Corte-Real & Associados – Consultores, Lda., Rua Castilho, 167, 2º andar. 1070-050 Lisbon, Portugal (professional representative)

a g a i n s t

Nathalie Beniguel, 6 rue du Débarcadère, 75017 Paris, France (applicant), represented by Ab Initio, 5 rue Daunou, 75002 Paris, France (professional representative).

On 18/01/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 489 758 is partially upheld, namely for the following contested goods and services:

Class 18:        Cases, of leather or leatherboard; coin purses; card holders; briefcases; casual bags; hand bags, school bags, rucksacks, bags for climbers, bags for campers, baggage (repeated twice), beach bags; gentlemen's handbags; pouch bags; key bags; vanity cases, not fitted; cosmetic bags sold empty; cosmetic bags sold empty; net shopping bags and shopping bags; bags (envelopes, pouches) of leather, for packaging.

Class 25:        Clothing; headgear; shirts; pants (am.); sportswear; furs (clothing); underwear; waist belts; garters; ties; bowties; gloves; scarves; beach wraps; aprons for wear; shawls; tights; suits; sashes for wear; boas (necklets); bath robes; knit shirts; jumpers; lingerie; swimming costumes; swimwear, bath robes; jackets; parkas; waistcoats; footwear; socks; slippers; slippers; boots; ankle boots; beach shoes; ski boots; sports shoes; hosiery; headgear; berets; caps [headwear]; bandanas [neckerchiefs]; ballerina shoes; cloaks.

Class 35:        Wholesaling and retailing, via catalogues, in shops or on websites of footwear, beach shoes, footwear for sportswear, ballet shoes.

2.        European Union trade mark application No 13 412 952 is rejected for all the above goods and services. It may proceed for the remaining goods and services.

3.        Each party bears its own costs.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 13 412 952, namely against all the goods in Classes 18 and 25 and some of the services in Class 35. The opposition is based on European Union trade mark registration No 4 804 019 for the figurative mark  and Portuguese trade mark registration No 392 075 for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR.

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 European Union trade mark registration No 4 804 019 and Portuguese trade mark registration No 392 075.

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

The contested application was published on 15/12/2014. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in the European Union and in Portugal from 15/12/2009 to 14/12/2014 inclusive.

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

European Union trade mark registration No 4 804 019

Class 18:        Leather and imitations of leather, and goods made of these materials and not included in other classes; cases; umbrellas and parasols.

Class 25:        Articles of clothing and footwear.

Portuguese trade mark registration No 392 075

Class 18:        Leather articles and imitations of leather not included in other classes; trunks; bags included in this class; parasols and umbrellas.

Class 25:        Clothing goods and footwear.

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 11/12/2015, according to Rule 22(2) EUTMIR, the Office gave the opponent until 16/02/2016 to submit evidence of use of the earlier trade marks. On 15/02/2016, within the time limit, the opponent submitted evidence of use.

The evidence to be taken into account is the following:

• Document 1-2: Two catalogues in English of footwear, containing pictures of several shoe models (namely 6191, 6192, 4592, 4220, 5164, 5163, 2514, 5166, 6255, 6253, 6127, 6322, 6014 and 2514, 3079, 4592, 5025, 5163, 5164, 5164, 5166, 5604, 6009, 6014, 6063, 6127, 6191, 6192, 6196, 6253, 6255, 6281, 6407, 6411, 6454, 6499, 6669, 6948, 7016). The catalogues displays, inter alia, the sign  .

• Document 3-28: Several photographs of different models of shoes clearly corresponding to articles listed in the catalogues. The article reference is visible in most of the pictures. Also, the sign appears in some of the insoles.

• Document 29-45: Consist of seventeen invoices dated in the period comprised between 27/01/2012 and 21/11/2014. These invoices are issued by the opponent to clients in France, Portugal and The Netherlands. The trade mark is visible in the document header. Some of the articles listed in the invoices are associated to identification numbers which correspond to shoes listed in the catalogues.

• Document 46-48: Consist of three invoices dated in the period comprised between 30/09/2014 and 18/11/2014. These invoices are issued by the opponent to clients in France and in Portugal, and make reference to the sale of “Penha” shoe boxes.

• Document 49: One photograph of customized products, namely a “Penha” shoe stretcher and a “Penha” customized box.

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

The documents filed by the opponent provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use.

The invoices show that the place of use is the European Union including Portugal, considering that they are addressed to clients in this country but also in France and in the Netherlands. This can be also inferred from the currency mentioned (‘EURO’). Therefore, the evidence relates to the relevant territories. All of the evidence is dated within the relevant period.

In the context of Rule 22(3) EUTMIR, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, of the use of the mark as registered, or of a variation thereof according to Article 15(1), second subparagraph, point (a) EUTMR, and of its use for the goods and services for which it is registered.

The signs appear in the catalogues, the invoices and also directly applied on the shoes which are displayed in the several pictures submitted by the opponent. The invoices make reference to a considerable amount of items. Also, the numbers of the articles listed on the invoices are directly linked to the catalogues and to the pictures of the shoes which are the object of the sales.

Taking into account the evidence in its entirety, the evidence submitted by the opponent is sufficient to prove genuine use of the earlier trade marks during the relevant period in the relevant territories.

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

According to Article 42(2) EUTMR, if the earlier trade mark has been used in relation to part only of the goods or services for which it is registered it shall, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services.

According to case-law, when applying the abovementioned provision the following should be considered:

…if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub-categories.

(14/07/2005, T-126/03, Aladin, EU:T:2005:288).

In the present case, the evidence proves use only for shoes. These goods can be considered to form an objective subcategory of footwear, namely shoes. Therefore, the Opposition Division considers that the evidence shows genuine use of the trade mark only for shoes.

None of the remaining goods and services on which the opposition is based are mentioned in any other document submitted by the opponent. As regards the shoe boxes referred to in the documents 46-48, it is clear that these goods are not among the goods for which the earlier marks enjoy protection. It follows that no use can be proven. As already mentioned, the Opposition Division will then proceed only on the basis of shoes in Class 25.

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 4 804 019.

1. The goods and services

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

Class 25:        Shoes.

The contested goods and services are the following:

Class 18:        Leather and imitations thereof; cases, of leather or leatherboard; trunks and travel bags; umbrellas, sun umbrellas, parasols; walking sticks; whips, harness and saddlery; baggage; coin purses; card holders; briefcases; casual bags; hand bags, school bags, rucksacks, wheeled shopping bags, bags for climbers, bags for campers, baggage, beach bags; gentlemen's handbags; pouch bags; trunks and travelling sets; key bags; vanity cases, not fitted; cosmetic bags sold empty; cosmetic bags sold empty; net shopping bags and shopping bags; bags (envelopes, pouches) of leather, for packaging.

Class 25:        Clothing; headgear; shirts; pants (am.); sportswear; furs (clothing); underwear; waist belts; garters; ties; bowties; gloves; scarves; beach wraps; aprons for wear; shawls; tights; suits; sashes for wear; boas (necklets); bath robes; knit shirts; jumpers; lingerie; swimming costumes; swimwear, bath robes; jackets; parkas; waistcoats; footwear; socks; slippers; slippers; boots; ankle boots; beach shoes; ski boots; sports shoes; hosiery; headgear; berets; caps [headwear]; bandanas [neckerchiefs]; ballerina shoes; cloaks.

Class 35:        Wholesaling and retailing, via catalogues, in shops or on websites of leather and imitations of leather, boxes of leather or leatherboard, trunks, travelling bags and suitcases, umbrellas and parasols, walking sticks, whips, harness and saddlery, pocket wallets, coin purses, card holders, document holders, bags, handbags, school satchels, rucksacks, wheeled shopping bags, bags for climbers, bags for campers, travel bags, beach bags, shoulder bags, pouch bags, travelling trunks and sets, key cases, vanity cases, not fitted, toiletry bags (empty), cosmetic bags (empty), bags or net bags for shopping, bags or sachets (envelopes, pouches) for packaging (of leather), clothing, headgear, shirts, trousers, sports clothing, furs (clothing), underwear, belts, braces, ties, bow ties, gloves, neckerchiefs, sarongs, aprons (clothing), shawls, tights, suits, scarves, boas (necklets), dressing gowns, knitwear, jumpers, lingerie, swimming costumes, bathing costumes, bath robes, coats, parkas, waistcoats, footwear, socks, slippers, boots, ankle boots, beach shoes, ski footwear, footwear for sportswear, hosiery, hats, berets, caps, bandanas, ballet shoes, cloaks.

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

The opponent’s shoes in Class 25 are used to cover parts of the human body, namely feet, and protect them against the elements. They are also articles of fashion. The contested cases, of leather or leatherboard; coin purses; card holders; briefcases; casual bags; hand bags, school bags, rucksacks, bags for climbers, bags for campers, baggage (repeated twice), beach bags; gentlemen's handbags; pouch bags; key bags; vanity cases, not fitted; cosmetic bags sold empty (repeated twice); net shopping bags and shopping bags; bags (envelopes, pouches) of leather, for packaging are related to shoes in Class 25. This is because consumers are likely to consider the Class 18 goods as accessories that complement articles of shoes as the former are closely co-ordinated with the latter. Furthermore, they may be distributed by the same or linked manufacturers and it is not unusual for manufacturers of shoes to directly produce and market related goods such as shoes in Class 25. Moreover, these goods can be found in the same retail outlets. Therefore, these goods are considered similar.

The contested leather and imitations thereof in Class 18 refer to the skins of various kinds of animals (or imitations thereof). These are raw materials. The fact that one product is used for manufacturing another (for example, leather for shoes) is not sufficient in itself for concluding that the goods are similar, as their nature, purpose, relevant public and distribution channels may be quite distinct. The abovementioned raw materials in Class 18 are intended for use in industry rather than for direct purchase by the final consumer. They are sold in different outlets, are of a different nature and serve a different purpose from shoes. Therefore, these goods are dissimilar.

The contested trunks and travelling sets are large packing cases or boxes that clasp shut, used as luggage or for storage; umbrellas are devices for protection from the weather consisting of a collapsible, usually circular canopy mounted on a central rod; sun umbrellas and parasols are light umbrellas carried for protection from the sun; walking sticks are canes or other staffs used as aids for walking; whips are instruments used for driving animals; harness are the gear or tackle with which a draft animal pulls a vehicle or implement; and saddlery is equipment for horses, such as saddles and harnesses. The nature of these goods is very different from that of shoes in Class 25. They serve very different purposes (storage, protection from rain/sun, assistance with walking, aid in the control and/or riding of animals versus covering/protecting the human body). They do not usually have the same retail outlets and are not usually made by the same manufacturers. These goods are considered dissimilar.

The same reasoning applies to the contested travel bags and wheeled shopping bags. These goods are considered dissimilar to shoes. Travel bags are for carrying things when travelling and do not satisfy the same needs as shoes. They do not have the same retail outlets and are not made by the same manufacturers. Moreover, the goods are neither in competition nor complementary.

Contested goods in Class 25

The contested footwear includes, as a broader category, the opponent’s shoes. Since the Opposition Division cannot dissect ex officio the broad category of the contested goods, they are considered identical to the opponent’s goods.

The contested beach shoes; sports shoes; ballerina shoes are included in the opponent’s broad category of shoes. Thus, these goods are identical.  

The contested slippers (repeated twice); boots; ankle boots; ski boots are different types of footwear which are therefore related to the opponent’s shoes in Class 25, since they serve basically the same purpose (to cover and protect the human body), may be manufactured or marketed by the same undertakings and are likely to be found at the same sales outlets. For all these reasons, these goods are deemed to be highly similar.

The contested clothing; headgear; shirts; pants (am.); sportswear; furs (clothing); underwear; waist belts; garters; ties; bowties; gloves; scarves; beach wraps; aprons for wear; shawls; tights; suits; sashes for wear; boas (necklets); bath robes; knit shirts; jumpers; lingerie; swimming costumes; swimwear, bath robes; jackets; parkas; waistcoats; socks; hosiery; headgear; berets; caps [headwear]; bandanas [neckerchiefs]; cloaks serve the same purpose as shoes: all these goods are used for covering and protecting parts of the human body and for fashion. They are often found in the same retail outlets. Consumers looking for clothes will expect to find shoes in the same department or shop and vice versa. Moreover, many manufacturers and designers will design and produce both items of clothing and shoes. Therefore, the goods are similar.

Contested services in Class 35

Retail services concerning the sale of particular goods are similar to a low degree to those particular goods. Although the nature, purpose and method of use of these goods and services are not the same, they have some similarities, as they are complementary and the services are generally offered in the same places where the goods are offered for sale. Furthermore, they target the same public.

Therefore, the contested wholesaling and retailing, via catalogues, in shops or on websites of footwear, beach shoes, footwear for sportswear, ballet shoes are similar to a low degree to the opponent’s shoes.

The contested wholesaling and retailing, via catalogues, in shops or on websites of leather and imitations of leather, boxes of leather or leatherboard, trunks, travelling bags and suitcases, umbrellas and parasols, walking sticks, whips, harness and saddlery, pocket wallets, coin purses, card holders, document holders, bags, handbags, school satchels, rucksacks, wheeled shopping bags, bags for climbers, bags for campers, travel bags, beach bags, shoulder bags, pouch bags, travelling trunks and sets, key cases, vanity cases, not fitted, toiletry bags (empty), cosmetic bags (empty), bags or net bags for shopping, bags or sachets (envelopes, pouches) for packaging (of leather), clothing, headgear, shirts, trousers, sports clothing, furs (clothing), underwear, belts, braces, ties, bow ties, gloves, neckerchiefs, sarongs, aprons (clothing), shawls, tights, suits, scarves, boas (necklets), dressing gowns, knitwear, jumpers, lingerie, swimming costumes, bathing costumes, bath robes, coats, parkas, waistcoats, socks, slippers, boots, ankle boots, ski footwear, hosiery, hats, berets, caps, bandanas, cloaks and shoes in Class 25 are not similar. Apart from being different in nature, since services are intangible whereas goods are tangible, they serve different needs. Retail services consist in bringing together, and offering for sale, a wide variety of different products, thus allowing consumers to conveniently satisfy different shopping needs at one stop. This is not the purpose of goods. Furthermore, goods and services have different methods of use and are neither in competition nor complementary. Similarity between retail services of specific goods covered by one mark and specific goods covered by another mark can only be found where the goods involved in the retail services and the specific goods covered by the other mark are identical. This condition is not fulfilled in the present case since the goods at issue are only similar or dissimilar. Thus, these goods and services are deemed to be 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 and services found to be identical or similar to various degrees are directed at the public at large. The degree of attention is expected to be average.

3. The signs

	PENHAP
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). Therefore, a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application. In the present case, the Opposition Division finds it appropriate to focus the comparison of the signs on the part of the public for whom they have no meaning such as, for instance, the French and Italian-speaking part of the relevant public.

The earlier mark is a figurative mark. It consists of the word ‘PENHA’ depicted using fanciful character. The letter ‘P’ is highly stylized while the remaining letters are black rounder lower case letters.

The contested sign is a word mark consisting of the term ‘PENHAP’.

The marks in dispute have no elements that could be considered clearly more distinctive or more dominant (visually eye-catching) than other elements.

Visually, in view of the fact that the earlier mark is a figurative sign with a certain degree of stylization, the signs coincide in some features of the common letters ‘PENHA’. However, they differ in the aforesaid stylization of the letters of the earlier mark, and in particular of the letter ‘P’, and in the additional last letter ‘P’ of the contested sign.

As regards the earlier mark, account must be taken on the fact 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; decisions of 19/12/2011, R 233/2011-4 Best Tone (fig.) / BETSTONE (fig.), § 24; 13/12/2011, R 53/2011-5, Jumbo (fig.) / DEVICE OF AN ELEPHANT (fig.), § 59).

Also, it cannot be obliterated that as regards their verbal element, the letters of the signs are the same with the exception of the last letter ‘P’ of the contested sign. 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.

Therefore, the signs are visually similar to a high degree.

Aurally, irrespective of the different pronunciation rules in different parts of the relevant territory, the pronunciation of the signs coincides, independently on the fact they have a sound or not, present identically in both signs. The pronunciation differs in in the sound of the last letter ‛P’ of the contested mark, which has no counterpart in the earlier sign. Considering that the only aural difference between the sign is at the end of one of the signs, the Opposition Division is of the opinion that they are aurally similar to a high degree.

Conceptually, neither of the signs has a meaning for the public in the relevant territory. Since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs.

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 and services in question from the perspective of the public in the relevant territory. Therefore, the distinctiveness of the earlier mark must be seen as normal.

5. Global assessment, other arguments and conclusion

The good and services covered by the trade marks in dispute have been found partly identical, partly similar to various degrees and partly dissimilar. These goods and services are directed at the public at large and the degree of attention is expected to be average.

The marks are visually and aurally similar to a high degree. In fact, the letters of the earlier signs are all included, in the same order, in the word ‘PENHAP’, which form the whole of the contested sign. The only difference is constituted by the particular way in which the letters of the earlier sign are depicted. However, as seen above in section c) of the present decision, this circumstance is offset by the existence of the principle according to which the verbal component of the sign usually has a stronger impact on the consumer than the figurative component.

Moreover, 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).

In view of all the foregoing, due to the visual and aural similarity and the absence of any dominant or non-distinctive elements in the signs, a likelihood of confusion exists on the part French and Italian-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 and services found to be identical or similar to various degrees to those of the earlier trade mark.

The rest of the contested goods and services are dissimilar. As similarity of goods and services is a necessary condition for the application of Article 8(1) EUTMR, the opposition based on this article and directed at these goods and services cannot be successful.

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

• Portuguese trade mark registration No 392 075.

Since this mark is identical to the one which has been compared and, after the analysis of the proof of use, has been found that it covers the same scope of goods, the outcome cannot be different with respect to goods and services for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods and services.

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

The Opposition Division

Edith Elisabeth VAN DEN EEDE

Andrea VALISA

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.