OPPOSITION DIVISION
OPPOSITION No B 2 765 868
Pascal Kremmers and Mischa Hüschen, Schifferstraße 196, 47059 Duisburg,
Germany (opponents), represented by KPMG Rechtsanwaltsgesellschaft mbH,
Tersteegenstraße 19-31, 40474 Düsseldorf, Germany (professional representative)
a g a i n s t
IGO-Post B.V., Haverdijk 5, 5704 RC Helmond, the Netherlands and Clipper B.V.,
Haverdijk 7, 5704 RC Helmond, the Netherlands (applicants), represented by
Algemeen Octrooi- En Merkenbureau B.V., John F. Kennedylaan 2, 5612 AB
Eindhoven, the Netherlands (professional representative).
On 20/11/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 765 868 is rejected in its entirety.
2. The opponents bear the costs, fixed at EUR 300.
Preliminary remark
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU)
2017/1431, subject to certain transitional provisions. All the references in this
decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to
the Regulations currently in force, except where expressly indicated otherwise.
REASONS
The opponents filed an opposition against all the services of European Union trade
mark application No 15 197 593 for the figurative mark . The
opposition is based on European Union trade mark registration No 12 849 048 for the
word mark ‘PRODOT’. The opponents 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
Decision on Opposition No B 2 765 868 page: 2 of 11
goods and services, the distinctiveness of the earlier mark, the distinctive and
dominant elements of the conflicting signs, and the relevant public.
a) The goods and services
The goods and services on which the opposition is based are the following:
Class 9: Apparatus for the transmission of data; pre-recorded cassettes; screen
savers; compact discs; cd roms; chipcards; integrated circuit chips;
computers; computer operating programs, recorded; data carriers for
computers having software recorded thereon; computer hardware for use
in computer-assisted software engineering; computer components and
parts; peripherals adapted for use with computers; programs (computer -)
[downloadable software]; computer programmes [programs], recorded;
magnetic cards being computer software; computer programs for project
management; computer programmes for use in telecommunications;
computer software for computer aided software engineering;
communications processing computer software; computer software for
creating dynamic websites; games software; computer databases; memory
storage devices; computer databases; data storage devices; storage
apparatus for computer data; data storage media; data processing
apparatus and fittings (electrical and mechanical); computer programmes
for data processing; floppy disks; dvds; electronic units for transmitting
audio signals; navigating apparatus (electronic -); telecommunications
apparatus; integrated circuits; apparatus for the reproduction of images;
data processing apparatus; integrated circuits; interactive multimedia
computer programs; interfaces for computers; cameras; smart cards
[integrated circuit cards]; encoded magnetic cards; communications
equipment; telecommunications apparatus; apparatus for transmission of
communication; magnetic tapes; magnetic data carriers; magnetic
platforms for software; magnetic supports for software; machine readable
data carriers; microphones; mobile phones; vehicles (navigation apparatus
for -) [on-board computers]; navigating apparatus [compasses]; optical
data carriers; telecommunications circuit board units; printer spooler
software; computer game programs; servers for web hosting; data
protection backup units; software; computer software applications,
downloadable; cartridges [software] for use with computers; credit
screening software; games software; computer telephony software;
desktop publishing software; data compression software; software for card
readers; table representation software; computer software packages;
software programmable microprocessors; computer software for the
integration of control elements; software for ensuring the security of
electronic mail; industrial process control software; telephones;
telecommunications apparatus.
Class 16: Scrapbooks; almanacs; books; pads [stationery]; printed matter; printed
matter for educational purposes; flyers; computer programmes in printed
form; handbooks [manuals]; computer software operating manuals;
calendars; cardboard; catalogues; instructional and teaching material
(except apparatus); paper; paper tapes and cards for the recordal of
computer programmes; cardboard; posters; periodicals; newspapers.
Class 35: Updating and maintenance of data in computer databases; temporary
personnel services; cost price analysis; business management and
organization consultancy; consultancy relating to advertising;
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computerised file management; business efficiency expert services;
marketing services; market research and analysis; public relations
services; on-line advertising on a computer network; search engine
optimization; web site traffic optimization; consultancy relating to business
organisation; organisation for a third party of telephone welcoming
services and of telephone receptionist services; arranging and conducting
of fairs and exhibitions for advertising purposes; arranging of
demonstrations for advertising purposes; organisational project
management in the field of electronic data processing; personnel
consultancy; personnel placement and recruitment; planning and
conducting of trade fairs, exhibitions and presentations for economic or
advertising purposes; presentation of companies on the internet and other
media; systemization of information into computer databases; sales
promotion for others; rental of office machines; rental of advertising space
on the internet; publicity material rental; providing and rental of advertising
space on the internet; mediation of trade business for third parties;
arrangement of advertising; distribution and dissemination of advertising
materials [leaflets, prospectuses, printed material, samples];
demonstration of goods and services by electronic means, also for the
benefit of the so-called teleshopping and homeshopping services;
advertising; advertisement for others on the internet; compilation and
systemization of information into computer databases.
Class 37: Computer hardware (installation, maintenance and repair of -); installation
of wireless telecommunications equipment and wireless local area
networks; installation and maintenance of hardware for internet access;
installation and maintenance of hardware for network systems; installation,
repair and maintenance of data technology installations (hardware).
Class 38: Provision of access to an electronic on-line network for information
retrieval; providing internet access services; providing user access to
computer programmes in data networks; providing access to electronic
communications networks and electronic databases; access to content,
websites and portals; forums [chat rooms] for social networking;
communications by computer terminals; transmission of vision via
interactive multimedia networks; internet services provider services;
installing webpages on the internet, for others; e-mail data services;
electronic exchange of messages via chat lines, chat rooms and internet
forums; provision of access to computer networks and the internet;
provision of on-line communications services; communications by
computer terminals; computer aided transmission of messages and
images; network conferencing services; network transmission of sounds,
images, signals and data; on-line services, namely, message sending;
transmission of information online; collection and delivery of messages by
electronic mail; telecommunications; telecommunication services;
telecommunications by means of platforms and portals on the internet;
telecommunication gateway services; data bank interconnection services;
hire of message delivery apparatus; leasing of access time to a computer
database; leasing access time to web sites [isp’s]; providing access to
databases; web messaging; rental of apparatus for transmitting images.
Class 39: Rental of spaces in computer centres for webservers for external use
(webhousing).
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Class 41: Providing of training; provision of tuition; training in the design of software
systems; provision of instruction relating to computer programming;
electronic desktop publishing; conducting of instructional seminars;
conducting courses, seminars and workshops; provision of training
courses; games on the internet; production of course material distributed
at professional seminars; preparation of texts for publication; education;
publication of manuals; editing of written texts; publishing by electronic
means; providing on-line electronic publications, not downloadable;
arranging and conducting of colloquiums; arranging and conducting of
conferences; arranging of courses of instruction; organisation of events for
cultural, entertainment and sporting purposes; production of audio
entertainment; services for the production of radio programmes; production
and distribution of television programmes; publication of magazines and
books in electronic form, also on the internet; entertainment provided via
the internet; entertainment; rental of lighting apparatus for theatrical sets or
television studios; rental of stage scenery; hire of sound recording
apparatus; publication of instructional literature; preparation of
entertainment programmes for broadcasting.
Class 42: Updating computer databases; updating of computer programs; updating
of internet pages; updating of memory banks of computer systems;
updating of computer software; editing of computer programs; advisory
services in the field of product development and quality improvement of
software; consultancy in the field of software design; consultancy in the
field of software design; consultancy services relating to quality control and
providing quality assurance services; web site design consultancy;
provision of security services for computer networks, computer access and
computerised transactions; provision of search engines for the internet;
providing information on computer technology and programming via a web
site; cloud computing; computer aided diagnostic testing services;
computer hardware and software consultancy; computer system analysis;
data warehousing; design, maintenance and up-dating of computer
software; graphic design; engineering services; physics [research];
services for the design of electronic data processing software; data
security services [firewalls]; computer virus protection services; technical
testing; electronic data security; electronic data storage; development of
interactive multimedia software; development of computer programs
recorded on data media (software) designed for use in construction and
automated manufacturing (cad/cam); development of computer networks;
development of software for secure network operations; development of
software for multimedia data storing and recalling; development of systems
for the storage of data; design, development and implementation of
software; design and development of computer hardware and computer
software; design and development of multimedia products; design and
development of networks; design services relating to data transmission
test tools; creating and maintaining web sites for others; conducting
engineering surveys; writing of computer programs; computer animation;
preparation of reports relating to technical research; preparation of reports
relating to scientific research; preparation of technical manuals; off-site
data backup; troubleshooting of computer hardware and software
problems; monitoring of computer systems by remote access; research
and development for others; creating, designing and maintaining web
sites; designing and implementing network web pages for others; services
for the design of computer software; creating of computer programs;
hosting of internet sites; installation, maintenance and updating of
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computer software; installation and maintenance of software; installation
and maintenance of internet access software; installation of computer
software; it security, protection and restoration; configuring computer
networks by means of software; data conversion of computer programs
and data [not physical conversion]; design and development of electronic
data security systems; design and development of software and hardware
for producing, recording and processing digital and analogue signals;
design of software for multimedia data storing and recalling; duplication of
computer programs; custom design of software packages; software
customisation services; modifying of computer programs; programming of
electronic control systems; computer programming; programming of data
processing equipment; scientific computer programming services; process
monitoring for quality assurance; testing of computing equipment; testing
of computer programs; testing of electronic data processing systems;
quality control; quality control relating to computer software; quality control
relating to computer systems; quality control; server administration;
software as a service [saas]; software engineering; developing computer
software; software creation; technical user and rights administration on
computer networks; technical advice in relation to telecommunications;
engineering consultancy relating to data-processing; engineering
consultancy relating to computer programming; technical advice relating to
safety; engineering design and consultancy; technical project management
in the field of electronic data processing; computer software technical
support services; safety technological testing services; technical testing
services; monitoring of network systems; rental and maintenance of
computer software; rental of design equipment; rental of web servers;
maintenance and repair of software; recovery of computer data; scientific
and industrial research; providing or rental of electronic memory space on
the internet (webspace); providing temporary use of non-downloadable
software for shipment processing over computer networks, intranets or the
internet; providing temporary use of non-downloadable software for
preparing invoices via computer networks, intranets or the internet;
providing temporary use of non-downloadable software for drawing up
dispatch documents via computer networks, intranets and the internet;
providing temporary use of non-downloadable software for tracking freight
via computer networks, intranets and the internet; providing temporary use
of non-downloadable software for tracking parcels via computer networks,
intranets and the internet.
Class 45: Licensing of computer software; computer software (licensing of -) [legal
services].
The contested services are the following:
Class 35: Administrative processing of purchase orders; business management
consulting; advisory services for business management; demonstration of
goods; distribution of samples; provision of an on-line marketplace for
buyers and sellers of goods and services; marketing services; sales
promotion services; all the aforesaid being as importer, wholesaler, seller
and advisor in the context of promotional articles, corporate gifts, non-food
consumer articles, gift articles, printed matter and advertising articles
offered to the private and public sectors, being diaries, stationery,
umbrellas, office requisites, textiles, batteries, usb sticks, bags, playthings,
mugs, drinking cups, flashlights, key rings, lanyards, sunglasses,
notepads, lighters.
Decision on Opposition No B 2 765 868 page: 6 of 11
Class 39: Courier services for the delivery of goods; Delivery of goods; Delivery of
goods by mail order; Gift-wrapping; Packaging of goods; Parcel delivery;
Freight warehousing; Transport; Wrapping of goods; All the aforesaid
being in the context of supplying promotional articles, corporate gifts, non-
food consumer articles, gift articles, printed matter and advertising articles
offered to the private and public sectors, in particular but not exclusively
relating to diaries, stationery, umbrellas, office requisites, textiles, batteries,
USB sticks, bags, playthings, mugs, drinking cups, flashlights, key rings,
lanyards, sunglasses, notepads, lighters.
Class 40: Custom assembling of materials by order and on behalf of third parties;
customized printing services of company names and logos for promotional
and advertising purposes on the goods of others; digital printing;
embroidery; etching; engraving; laminating; laser scribing services; offset
printing; pattern printing on textile; pattern printing; printing; all the
aforesaid being in the context of promotional articles, corporate gifts, non-
food consumer articles, gift articles, printed matter and advertising articles
offered to the private and public sectors, in particular but not exclusively
relating to diaries, stationery, umbrellas, office requisites, textiles, batteries,
usb sticks, bags, playthings, mugs, drinking cups, flashlights, key rings,
lanyards, sunglasses, notepads, lighters.
Some of the contested services are identical to services on which the opposition is
based. For reasons of procedural economy, the Opposition Division will not
undertake a full comparison of the goods and services listed above. The examination
of the opposition will proceed as if all the contested services were identical to those
of the earlier mark which, for the opponents, is the best light in which the opposition
can be examined.
b) 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 services assumed to be identical are directed at the public at
large, as well as at business customers with specific professional knowledge or
expertise, such as those looking for support in promoting or developing their
business. The public’s degree of attentiveness may vary from average to higher than
average, depending on the price, specialised nature, or terms and conditions of the
services purchased.
c) The signs
PRODOT
Earlier trade mark Contested sign
Decision on Opposition No B 2 765 868 page: 7 of 11
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 earlier mark is a word mark made up of the term ‘PRODOT’.
Part of the relevant public, such as the Italian-speaking one may associate the
element ‘PRODOT’ with the Italian word ‘prodotto’ with the meaning of the English
word ‘product’. As the relevant services could all be oriented towards providing a final
product, it is considered that the element is weaker than average for this part of the
relevant public, as it alludes to the subject matter or the means of provision of the
relevant services.
Furthermore, it should be pointed out that the Court has held that, although the
average consumer normally perceives a mark as a whole and does not proceed to
analyse its various details, the fact remains that, when perceiving a word sign, they
will break it down into elements which, for them, suggest a specific meaning or which
resemble words they know (13/02/2007, T-256/04, Respicur, EU:T:2007:46, § 57). In
light of the above judgment, the Opposition Division considers that at least part of the
English-speaking public will dissect the elements ‘PRO’ and ‘DOT’, respectively. The
element ‘PRO’ will be understood by the English-speaking part of the public and part
of the non-English-speaking public as meaning ‘professional’ or reference hereto
(11/09/14, T-127/13, Pro outdoor, EU:T:2014:767, § 58). For this part of the relevant
public this term has a limited distinctiveness, as it will be perceived as an indication
that the relevant services are professional services or target professionals. The term
‘DOT’ will be understood by the English part of the relevant public as, inter alia, a ‘tiny
spot, speck, or mark, esp. one made with or as with a pointed object’ (see Collins
English Dictionary online). Bearing in mind the services at stake, this element has a
normal distinctiveness. In light of the above, for this part of the relevant public, the
most distinctive element of the earlier mark is the term ‘DOT’.
For the remaining part of the public, e.g. Spanish- or Polish-speaking public, this
reasoning does not apply. It is reasonable to assume that, since the latter element
‘DOT’ will not be associated with any meaning, this part of the public will perceive
‘PRODOT’ as a whole, without artificially splitting it up into various components.
Therefore its distinctiveness is considered to be average for this part of the relevant
public.
The contested sign is a figurative mark made up of the element ‘PROMOT!V’ written
in a fairly standard pink typeface in bold capital letters. Underneath said element, on
the bottom right, appears in much smaller letters in black, the sequence ‘Selling
together’.
As regards the word ‘PROMOT!V’ of the contested sign, it should be pointed out that,
contrary to the opponents’ allegations, even though the penultimate character of the
word ‘PROMOT!V’ is the exclamation mark, it is very likely that a vast majority of the
relevant public will perceive it only as an inverted letter ‘i’, especially due to its
position in a letter string where exclamation marks are normally not used. Indeed, the
consumers tend to recognise a letter in a string even if it is distorted (or replaced with
a symbol that resembles it), as trade marks often distort letters or replace them with
figurative elements with a shape similar to that of a letter, intentionally looking for
Decision on Opposition No B 2 765 868 page: 8 of 11
effect or impact. To this extent, the Opposition Division considers the opponents’
arguments regarding the perception of the last letter ‘V’ as a roman number too far-
fetched. As regards the Office’s previous decision quoted on page 6 and 7 of the
opponents’ writ dated 17/01/2017, the Opposition Division would like to draw the
opponents’ attention that the numbers in those marks were Arabic and as such would
be perceived, whereas this is not the case here. Moreover, the public usually tends to
perceive verbal elements in the form in which they are most easy to pronounce
and/or have a sense. Therefore, the English-speaking part of the public, will most
likely associate this part with the English term ‘promotive’ meaning ‘tending to
promote’, which, in relation to at least part of the contested services, will be
perceived as allusive, since it refers to the purpose of these, namely to promote.
Furthermore, irrespective of the above said, it is also very likely that a vast majority of
the public, including the non-English-speaking part of the public, will perceive the
same as a reference to ‘promotion’, the latter being similar to the Spanish word
‘promoción’, Italian word ‘promozione’, French word ‘promotion’, Polish word
‘promocja’, Dutch word ‘promotie’, meaning an attempt to make a product or event
popular or successful, especially by advertising. If this is the case, the distinctiveness
of the term ‘PROMOT!V’ might be reduced for the same reasons as the ones set
forth above. It is, however, not excluded that, part of the relevant public, may
perceive only the component ‘PRO’ of the contested sign as having a particular
meaning, as in the earlier sign. A reference is made to the respective findings
regarding the distinctiveness of the component ‘PRO’ in the earlier sign, which are
equally applicable to the contested sign. For the sake of completeness, it cannot be
excluded either that part of the relevant public, e.g. the Bulgarian-speaking public,
might perceive the element ‘PROMOT!V’ as meaningless and, this being the case, it
has a normal distinctiveness in relation to the services at stake.
The sequence ‘Selling together’, placed underneath the element ‘PROMOT!V’, of the
contested sign will be understood by a part of the English-speaking public as the act
of offering something for sale by more than one person joined together. Thus, this
sequence most likely will be considered rather weak, due to its allusive nature, at
least in relation to part of the services at stake. For the remaining part of the public,
this sequence has no meaning and its distinctiveness should be seen as normal.
Notwithstanding the foregoing, said sequence, is secondary, due to its much smaller
size, less eye-catching stylization and the lower position in the contested sign. Thus,
the element ‘PROMOT!V’ is the dominant element, as it stands out visually.
Visually, the signs coincide in the element ‘PRO’ and the letters ‘OT’, whereas they
differ in the fourth letter of the marks, namely ‘D’ of the earlier mark vs ‘M’ of the
contested sign, the additional elements of the contested sign, i.e. both the
exclamation mark resembling an inverted letter ‘i’ followed by the letter ‘V’ in the first
element of the said mark and the sequence ‘Selling together’ placed beneath.
Regarding the typeface in which the verbal elements of the contested sign are
written, their stylisation is fairly standard and will not lead the consumer’s attention
away from the elements they seem to embellish. With respect to the opponents’
argument that the similarity between the marks is enhanced, because they coincide
in their beginnings, it must be recalled that the importance of the beginnings of signs
is a consideration that cannot prevail in all cases. Regarding the signs at issue,
consumers will perceive the different overall impression caused by them and will not
examine their individual details or letters (27/06/2012, T-344/09, EU:T:2012:324,
Cosmobelleza, § 52). It is, therefore, unlikely that consumers will be confused by the
presence of the coinciding letters ‘PRO-’ in the marks.
Decision on Opposition No B 2 765 868 page: 9 of 11
As a result of the above and taking into account what has been said regarding the
distinctiveness of the elements (and components) of the signs, the signs are
considered visually similar to a low degree.
Aurally, irrespective of the different pronunciation rules in different parts of the
relevant territory, the pronunciation of the signs coincides in the sound of the element
/PRO-/ and the letters /-OT(-)/, in case of the contested mark being followed by the
sound of the additional letters /-IV/. Moreover, for part of the public the signs also
differ in the sound of the additional sequence ‘Selling together’, if the latter as such is
being pronounced.
Taking into account what has been said above, the signs are aurally similar to a low
degree.
Conceptually, reference is made to the previous assertions concerning the semantic
content conveyed by the marks. When the component ‘PRO’ in both signs is
associated with the meanings specified above by part of the relevant public, the signs
are conceptually similar to a low degree for this part of the relevant public, because
of its weak content.
Part of the public in the relevant territory will perceive the meaning of the earlier
mark, while the other sign will lack a meaning; and vice-versa, part of the relevant
public would perceive a meaning in the contested sign, while the other sign will lack a
meaning. Since one of the signs will not be associated with any meaning, the signs
are not conceptually similar for these parts of the relevant public. In case of the
marks’ elements, if dissected, might be associated with a certain different meaning,
the signs are conceptually not similar either.
Finally, for part of the relevant public, neither of the signs has a meaning. Since a
conceptual comparison is not possible, the conceptual aspect does not influence the
assessment of the similarity of the signs for this part of the relevant public.
As the signs have been found similar to a low degree in at least one aspect of the
comparison, the examination of likelihood of confusion will proceed.
d) 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 opponents did not explicitly claim that their 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. Considering what has been stated above in section c) of this
decision, the distinctiveness of the earlier mark must be seen as lower than average
for all of the relevant services in question and for part of the relevant public (such as
the Italian-speaking part of the public). The mark has a normal degree of
distinctiveness for the remaining part of the relevant public, where it has no meaning
in relation to the services in question, despite the presence of a weak element (when
perceived as such) in the mark, as stated above in section c) of this decision.
e) Global assessment, other arguments and conclusion
Decision on Opposition No B 2 765 868 page: 10 of 11
The contested services were assumed to be identical to the earlier mark’s services,
and the relevant public’s level of attention varies from average to high, meaning that
consumers will be more informed and observant for some of the services at stake.
The earlier mark has a normal degree of distinctiveness for the relevant public, but
for the Italian-speaking part of the public the earlier mark’s distinctiveness might be
lower than average.
The Opposition Division highlights that in the case at hand, bearing in mind the low
visual, aural and conceptual similarity, if any, between the marks, there are still ample
differences between the signs to enable consumers to clearly distinguish between
them.
Thus, contrary to the opponents’ arguments, comparing the marks in overall terms,
the Opposition Division finds that there are sufficient differences, additional letters,
terms and graphic elements that are not shared by the marks, to outweigh the
similarities between them, even taking into account the average degree of attention
in relation to some of the services.
For the sake of completeness, it should be pointed out that the opponents refer to
previous decisions of the Office to support their arguments. However, the Office is not
bound by its previous decisions, as each case has to be dealt with separately and
with regard to its particularities.
This practice has been fully supported by the General Court, which stated that,
according to settled case-law, the legality of decisions is to be assessed purely with
reference to the EUTMR, and not to the Office’s practice in earlier decisions
(30/06/2004, T-281/02, Mehr für Ihr Geld, EU:T:2004:198).
Even though previous decisions of the Office are not binding, their reasoning and
outcome should still be duly considered when deciding upon a particular case.
In the present case, the previous cases referred to by the opponents are not relevant
to the present proceedings, as the marks under comparison in the present case lack
the conceptual link and/or the structural similarities between the signs present in the
cited cases.
Considering all the above, even assuming that the services are identical, there is no
likelihood of confusion on the part of the public. Therefore, the opposition must be
rejected.
COSTS
According to Article 109(1) EUTMR, the losing party in opposition proceedings must
bear the fees and costs incurred by the other party.
Since the opponents are the losing party, it must bear the costs incurred by the
applicant in the course of these proceedings.
According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3)
and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), the costs to be paid to the
applicant are the costs of representation, which are to be fixed on the basis of the
maximum rate set therein.
Decision on Opposition No B 2 765 868 page: 11 of 11
The Opposition Division
Eva Inés PÉREZ
SANTONJA
Klaudia MISZTAL Chantal VAN RIEL
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 EUTMR, notice of appeal
must be filed in writing at the Office within two months of the date of notification of
this decision. It must be filed in the language of the proceedings in which the decision
subject to appeal was taken. Furthermore, a written statement of the grounds for
appeal must be filed within four months of the same date. The notice of appeal will be
deemed to have been filed only when the appeal fee of EUR 720 has been paid.
The amount determined in the fixation of the costs may only be reviewed by a
decision of the Opposition Division on request. According to Article 109(8) EUTMR
(former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be
filed within one month of the date of notification of this fixation of costs and will be
deemed to have been filed only when the review fee of EUR 100 (Annex I A(33)
EUTMR) has been paid.