OPPOSITION No B 2 785 825

Providis Logistique, 11 rue Marcel Mérieux, 69960 Corbas, France (opponent), represented by Cabinet Germain & Maureau, 12, rue Boileau, 69006 Lyon, France (professional representative)

a g a i n s t

Frutas Ildefonso SL, Ctra. Nac. 340 Km 23, 11140 Conil de la Frontera, Spain (applicant).

On 20/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 785 825 is rejected in its entirety.

2.        The opponent bears the costs.

REASONS:

The opponent filed an opposition against all the goods of European Union trade mark application No 15 502 966, namely against all the goods in Classes 29 and 31. The opposition is based on French trade mark registrations No 63 439 807 and No 63 439 810, both registered for goods in Classes 29 and 31. The opponent invoked Article 8(1)(b) EUTMR.

FRAIS & COMPAGNIE FRAIS & CO
Earlier trade marks	Contested sign

SUBSTANTIATION

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 evidence filed by the opponent consists of copies of registration certificates of the earlier French trade marks accompanied by the relevant translations into English. As may be seen, the certificates indicate that the earlier trade marks’ applications were filed on 10/07/2006. However, this is not sufficient itself to substantiate the opponent’s earlier trade marks, as the opponent did not provide any relevant evidence that could demonstrate that these earlier rights have been renewed after their expiry date, 10/07/2016, and existed beyond the time limit for substantiation of the earlier rights set in the present proceedings, namely 02/04/2017.

Furthermore, the opponent’s letter received by the Office on 11/04/2017 will not be taken into account as it was sent after the relevant period for submission of observations by the parties.    

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.

Therefore, since the opponent failed to prove the validity of its earlier rights beyond the time limit for substantiation of the opposition, the opposition must be rejected as unfounded. 

COSTS

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

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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. In the present case the applicant did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.

The Opposition Division

Liliya  YORDANOVA

Patricia LOPEZ FERNANDEZ DE CORRES

Robert MULAC

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.