OPPOSITION No B 2 569 351

 

PRO.MED.CS Praha a.s, Telčská 1, Praha 1, Czech Republic (opponent), represented by Klára Labalestra, Na Poříčí 12, 11000 Praha 1, Czech Republic (professional representative)

 

a g a i n s t

 

Renapur Limited, London Road, East Wolves, Ashington, West Sussex RH20 3AX, United Kingdom (applicant), represented by Bomhard IP, S.L., C/Bilbao, 1, 5º, 03001 Alicante, Spain (professional representative).

 

On 02/05/2017, the Opposition Division takes the following

 

 

DECISION:

 

1. Opposition No B 2 569 351 is partially upheld, namely for the following contested goods:

 

Class 5:        Pharmaceutical preparations for veterinary use only; anti-bacterial pharmaceutical preparations for veterinary use only; anti-bacterial preparations for veterinary use only; saline-solutions for veterinary use only; biocides for veterinary use only; disinfectants for veterinary use only; antiseptics for veterinary use only; anti-fungal preparations for veterinary use only; anti-viral preparations for veterinary use only; antiseptic preparations for veterinary use only; preparations for disinfecting animal skin; natural body care products (medicated) for the animal skin; chemicals having antimicrobial properties for veterinary use; medicated cleansing preparations for animal skin (other than soap); germicidal preparations for animals (other than soap); medicated cleaning preparations for use on animals (other than soap).

 

2.        European Union trade mark application No 13 876 792 is rejected for all the above goods. It may proceed for the remaining goods.

 

3.        Each party bears its own costs.

 

 

REASONS:

 

The opponent filed an opposition against all the goods of European Union trade mark application No 13 876 792. The opposition is based on:

 

– Czech trade mark registration No 169 483 for the word mark ‘RANISAN’;

 

– Slovakian trade mark registration No 169 483 for the word mark ‘RANISAN’;

 

– International registration No 610 380 designating Lithuania, Romania, Bulgaria, Latvia, Poland, Croatia and Slovenia for the word mark ‘RANISAN’;

 

– International registration No 715 641 designating Estonia for the word mark ‘RANISAN’.

 

The opponent invoked Article 8(1)(b) EUTMR.

 

SUBSTANTIATION OF THE INTERNATIONAL REGISTRATIONS

 

According to Article 76(1) EUTMR, in proceedings before it the Office will examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office is restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

 

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

 

According to Rule 19(1) EUTMIR, the Office will give the opposing party the opportunity to present the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.

 

According to Rule 19(2) EUTMIR, within the period referred to above, the opposing party must also file proof of the existence, validity and scope of protection of its earlier mark or earlier right, as well as evidence proving its entitlement to file the opposition.

 

In particular, if the opposition is based on a registered trade mark which is not a European Union trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Rule 19(2)(a)(ii) EUTMIR.

 

In the present case the notice of opposition was not accompanied by any evidence as regards the earlier international registrations No. 610 380 and No. 715 641 on which the opposition is based.

 

On 03/09/2015 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit expired on 08/01/2016. 

 

The opponent did not submit any evidence concerning the substantiation of the earlier international registrations No. 610 380 and No. 715 641. By letter dated 24/02/2016, the Office informed the opponent that the request for proof of use concerning its international registrations No. 610 380 and No. 715 641 respectively, could not be taken into account due to a failure to substantiate the concerned earlier rights within the prescribed limit.

 

According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR, the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, the opposition will be rejected as unfounded.

 

The opposition must therefore be rejected as unfounded, as far as it is based on international registrations No. 610 380 and No. 715 641.

 

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 must 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 will be rejected.

 

The applicant requested that the opponent submit proof of use of Czech trade mark registration No 169 483 and of Slovakian trade mark registration No 169 483.

 

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.

 

The contested application was published on 26/05/2015. The opponent was therefore required to prove that the trade marks on which the opposition is based were put to genuine use in the Czech Republic and Slovakia from 26/05/2010 to 25/05/2015 inclusive.

 

Furthermore, the evidence must show use of the trade mark “RANISAN” for the goods on which the opposition is based, namely the following:

 

Class 5:         Pharmaceuticals products.

 

According to Rule 22(3) EUTMIR, the evidence of use must 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 24/02/2016, according to Rule 22(2) EUTMIR, the Office gave the opponent until 29/04/2016 to submit evidence of use of the earlier trade marks. On 28/04/2016, within the time limit, the opponent submitted evidence of use.

 

The evidence to be taken into account in relation to Czech trade mark registration No 169 483 is the following:

 

• Invoices: 165 invoices to wholesale distributors of medications in the Czech Republic (for further distribution to pharmacies throughout the relevant territory, according to the opponent), dating from 06/01/2010 to 18/06/2015, all of which contain references to the sign and the products covered by the invoice, together with a sample translation which indicates the English meaning of Czech language information indicated on invoice No. 2010100006, in handwriting.
• Tabular information attesting to the yearly turnover of the products bearing the sign “RANISAN” between 2010 and 2015 in the Czech Republic.
• Tabular information attesting to the amounts sold in the same period.
• Tabular information attesting to the yearly promotional costs of the product.
• Photographs of packages bearing the mark “RANISAN” (in respect of the two variants, one being available on prescription and one available over-the counter).
• Extract from the database of the State Institute for Drug Control certifying the approval of the medication for distribution in the Czech Republic.
• A leaflet containing information on the mark (and other marks) in Czech.
• An undated, promotional extract featuring the Czech language, which clearly displays the mark written on two kinds of packaging.
• Internet-based advertisements in English covering the relevant goods, which clearly show the mark depicted. The extracts are taken from the 2016 edition of the PRO.MED.CS Praha a.s website.

 

The invoices show that the place of use of the mark is the Czech Republic. This can be inferred from the language of most of the documents (‘Czech’), and the addresses. Therefore, the evidence relates to the relevant territory.

 

The Opposition Division agrees with the applicant that only the invoice evidence is clearly dated within the relevant period, however the invoice evidence is compelling and contains sufficient indications as regards the time of use, while the other extracts illustrate how the mark is used on the products which are the subject of the invoices.

 

The applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use of the goods for which the earlier mark is registered.

 

The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Opposition Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

 

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

 

The invoices filed provide the Opposition Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use of the earlier mark. The sample invoices are addressed to various medication distributors in the Czech Republic. The opponent´s sample invoices alone demonstrate sales which amount to significant turnover throughout the relevant period, for the relevant territory. The other material provided adequately supports this evidence, and illustrates the nature of the products which bear the sign and which are the subject of the invoices, i.e. medication (prescription and non-prescription), intended for the treatment of ailments in the gastrointestinal tract area, the indication being “short-term and symptomatic treatment of symptoms consisting of heartburn, hyperactivity of the stomach and nausea”.

 

As can be seen from the invoices, the sample packaging and the advertising and promotional material attached taken together, the goods being sold under the registered sign “RANISAN” are all pharmaceutical products which treat gastrointestinal disorders such as ulcers. The sample invoices from the Czech Republic between 2010 and 2015, clearly show there is no question of token use, and that the trade mark served a real commercial purpose in respect of these goods.

 

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.

 

It is clear from the invoices supplied that the mark is being used as registered in the course of trade in the pharmaceutical sector, being invoices arising in respect of goods bearing the mark which are distributed by the opponent to various pharmaceutical dispensers in the Czech Republic. Distribution is a method of business organisation that is common in the course of trade and implies use of the mark that cannot be regarded as purely internal use by a group of companies, since the mark is also used outwardly and publicly (judgment of 17/02/2011, T-324/09, Friboi, EU:T:2011:47, § 32).

 

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

 

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

 

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 will, 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).

 

Therefore, if the earlier mark has been registered for a broad category of goods or services but the opponent provides evidence of use only for specific goods or services falling within this category, this raises the question of whether the submitted evidence is to be regarded strictly as proof of use only for the particular goods or services, which are not mentioned as such in the list of goods or services, or for the broad category as specified in the registration.

 

In light of the evidence produced and the applicant´s submissions on the use shown, the Opposition Division accepts that evidence of genuine use has been shown only in relation to a subcategory within the broader category of the opponent´s pharmaceuticals products. The evidence shows use of the trade mark as registered in relation to pharmaceutical products which treat gastrointestinal disorders such as peptic ulcers.

 

The Opposition Division takes note of the applicant´s submission that this subcategory is limited to use by humans only. However, according to case law, the broad category of pharmaceutical preparations includes both pharmaceutical preparations for human use and those for veterinary use (15/03/2012, T-288/08, Zydus, EU:T:2012:124, § 42). The fact that veterinary products are produced for administering to animals cannot change the finding that they are or can be pharmaceutical products. Moreover, some pharmaceuticals for humans are also used for animals especially since gastrointestinal disorders can be treated in animals too.

 

Furthermore, according to case law, allowing an earlier trade mark to be deemed to be registered only in relation to the part of the goods or services in respect of which genuine use has been established … must be reconciled with the legitimate interest of the proprietor in being able in the future to extend his range of goods or services, within the confines of the terms describing the goods or services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him (14/07/2005, T-126/03, Aladin, EU:T:2005:288, §  51).

 

Therefore, the Opposition Division considers that the evidence shows genuine use of the trade mark for pharmaceutical products to treat gastrointestinal disorders.

 

The opponent also furnished within the prescribed time limit proof of use for the earlier Slovakian trade mark registration No 169 483 for the word mark ‘RANISAN’

 

The evidence to be taken into account in relation to Slovakian trade mark registration is the following:

 

• Invoices: 165 invoices, ranging between 18 and 34 sample invoices per year between 2011 and 2015, all of which contain references to the sign and the products covered by the invoice. The invoices are addressed to an entity called PROM.MEDIC.SK.
• Tabular information attesting to the yearly turnover of the products bearing the sign “RANISAN” between 2010 and 2015 in Slovakia.
• Tabular information attesting to the amounts sold in the same period.
• Tabular information attesting to the yearly promotional costs of the product.
• Images of packages bearing the mark “RANISAN”.
• Printout from the database of medicinal products showing listings of the product ‘RANISAN’.
• Promotional material and advertisements.

 

The Opposition Division points out that from the proof of use submitted and the opponent’s observations it is clear that the evidence relates only to the same goods for which use was accepted as regards the earlier Czech trade mark registration, namely pharmaceutical products to treat gastrointestinal disorders. Neither the evidence, nor the opponent’s observations contain references to, proof of use or arguments concerning any other goods.

 

The applicant submits that the aforementioned invoices fail to prove genuine use of the mark in Slovakia, as the invoices are addressed to the opponent´s own affiliate. However, at this point the Opposition Division deems it appropriate to not go into the above argument and to not examine all the other relevant indications of use. The examination of the present opposition will continue as if all relevant requirements for genuine use of the earlier Slovakian mark for pharmaceutical products to treat gastrointestinal disorders were proven.

 

 

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 Czech trade mark registration No 169 483.

 

 

1. The goods

 

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

 

Class 5:        Pharmaceutical products to treat gastrointestinal disorders.

 

The contested goods are the following:

 

Class 3:        Dermatological cosmetic preparations for animals only; essential oils for cosmetic purposes for use on animals; barrier preparations for the skin of animals; barrier creams for animals; cleaning preparations for animals; liquid soaps for animals; soaps for animals; cleaning preparations containing bactericides for animals; shampoos for animals.

 

Class 5:        Pharmaceutical preparations for veterinary use only; anti-bacterial pharmaceutical preparations for veterinary use only; anti-bacterial preparations for veterinary use only; saline-solutions for veterinary use only; biocides for veterinary use only; disinfectants for veterinary use only; antiseptics for veterinary use only; anti-fungal preparations for veterinary use only; anti-viral preparations for veterinary use only; antiseptic preparations for veterinary use only; preparations for disinfecting animal skin; natural body care products (medicated) for the animal skin; chemicals having antimicrobial properties for veterinary use; medicated cleansing preparations for animal skin (other than soap); germicidal preparations for animals (other than soap); medicated cleaning preparations for use on animals (other than soap).

 

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 3

 

The contested dermatological cosmetic preparations for animals only; essential oils for cosmetic purposes for use on animals; barrier preparations for the skin of animals; barrier creams for animals are dissimilar to the opponent´s pharmaceutical products to treat gastrointestinal disorders. The former are used to protect or treat the skin of animals only, are for cosmetic purposes or for the purpose of protection, while the latter treat the digestive system for therapeutic or curative purposes. Furthermore, they have a different method of use, being applied topically as opposed to ingested orally. While they may share the same distribution channels since they can all be found in pharmacies or other specialized shops, this does not suffice to render them similar.

 

The contested cleaning preparations containing bactericides for animals; cleaning preparations for animals; liquid soaps for animals; soaps for animals; shampoos for animals are also dissimilar to the opponent´s goods. The former are primarily used as a toiletry or cleaning items to beautify, groom or otherwise care for an animal, while the latter treat the digestive system for therapeutic or curative purposes. Again, the former have a different method of use, being applied topically as opposed to ingested orally. While they may share the same distribution channels since they can all be found in pharmacies or other specialized shops, this does not suffice to render them similar.

 

Contested goods in Class 5

 

The contested pharmaceutical preparations for veterinary use only include, as a broader category the opponent’s pharmaceuticals products to treat gastrointestinal disorders. 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 anti-bacterial pharmaceutical preparations for veterinary use only; anti-bacterial preparations for veterinary use only; saline-solutions for veterinary use only; biocides for veterinary use only; disinfectants for veterinary use only; antiseptics for veterinary use only; anti-fungal preparations for veterinary use only; anti-viral preparations for veterinary use only; antiseptic preparations for veterinary use only; preparations for disinfecting animal skin; natural body care products (medicated) for the animal skin; chemicals having antimicrobial properties for veterinary use; medicated cleansing preparations for animal skin (other than soap); germicidal preparations for animals (other than soap); medicated cleaning preparations for use on animals (other than soap), are similar to at least a low degree to the opponent´s goods as they treat harmful microorganisms  for the purpose of maintaining optimal health by way of prevention or treatment. Therefore, they share a health-related purpose with the opponent´s goods which is more than incidental, have a similar nature to this extent, may share the same distribution channels and producers, and may target the same public.

 

 

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 identical or similar goods at issue are directed at the public at large and at professionals in the field of medicine. The consumer´s level of attention is considered to be higher than average in respect of the health- related goods:

 

Insofar as pharmaceutical preparations are concerned, medical professionals have a high degree of attention. Furthermore, with regard to end consumers, it is apparent from case-law that, even in cases where pharmaceutical products are sold without prescription, such goods will be of concern to consumers because they affect their state of health. Therefore, pharmaceutical products, whether or not issued on prescription, receive a heightened degree of attentiveness by consumers (15/12/2010, T-331/09, Tolposan, EU:T:2010:520, § 26; 15/03/2012, T-288/08, Zydus, EU:T:2012:124, § 36).

 

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

 

 

3. The signs

 

 

 

RANISAN	RENASAN
Earlier trade mark	Contested sign

 

The relevant territory is the Czech Republic.

 

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 applicant claims that “-SAN” is frequently used in respect of cleaning and health care products to indicate that their use is beneficial to health, citing R-378/2011-4, Mann & Schroder v Laboratories Inibsa, at paragraph 18 in this regard. However, the relevant public in this decision was the Spanish public who would perceive an allusion to the Latin words “sanitas, sano” and the corresponding Spanish terms “sanidad, sano”. This association will not be understood by the Czech public for whom the “SAN” has no meaning.

 

The applicant also maintains that “RENA” will be understood as denoting “renal” in a pharmaceutical context, or as an abbreviation of the name of the owner, but has not provided any evidence to support this view. Neither “RENI” nor “RANI” will be perceived as having any meaning by the Czech public.

 

Therefore, both signs will not be associated with any meaning by the relevant public and are normally distinctive.

 

Neither sign has a dominant element (being word marks).

 

Visually and aurally, the single-word signs coincide in five letters out of seven ‘R_N_SAN’, which will be pronounced identically. They differ in their second and fourth letters only. Therefore, the signs are highly similar.

 

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 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

 

Evaluating likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the marks and between the goods or services. Therefore, a lesser degree of similarity between goods and services may be offset by a greater degree of similarity between the marks and vice versa (29/09/1998, C-39/97, Canon, EU:C:1998:442, § 17).

 

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).

 

Due to the visual and aural high similarity between the signs, the identity and low similarity of the goods, and the absence of any dominant or non-distinctive elements, a likelihood of confusion exists on the part of the Czech general public, even displaying a higher level of attention in respect of the goods found to be identical or similar to a low degree.

 

The general public (more prone to confusion) is likely to confuse the marks even in relation to the goods which are similar to a low degree only, since the strong similarity between the signs is clearly sufficient to offset the low degree of similarity between the goods.

 

Considering all the above, there is a likelihood of confusion on the part of the general public. Given that a likelihood of confusion for only part of the relevant public of the European Union is sufficient to reject the contested application, there is no need to analyse the remaining part of the public.

 

Therefore, the opposition is partially well founded on the basis of the opponent’s Czech trade mark registration No 169 483. It follows that the contested trade mark must be rejected for the goods found to be identical or similar (to a low degree) to those of the earlier trade mark.

 

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

 

The opponent has also based its opposition on the Slovakian trade mark registration No 169 483 for the word mark ‘RANISAN’.

 

Since use of this mark has not been shown for goods beyond the goods that have already been compared, the outcome cannot be different with respect to goods for which the opposition has already been rejected. Therefore, no likelihood of confusion exists with respect to those goods. Consequently, the Opposition Division does not need to examine the evidence of use submitted by the opponent in relation to this earlier right with regard to all the remaining requirements of use (relating to territory, time, extent, etc.).

 

 

COSTS

 

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Opposition Division will decide a different apportionment of costs.

 

Since the opposition is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

 

 

 

 

The Opposition Division

 

 

Biruté SATAITE-GONZALEZ

Keeva DOHERTY

Denitza STOYANOVA-VALCHANOVA

 

 

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.