OPPOSITION No B 2 684 515

MUSIC Group IP Ltd., P.O. Box 146 Trident Chambers, Wickhams Cay, Road Town, Tortola, Virgin Islands of Great Britain (opponent), represented by MUSIC Group Services EU GmbH, Frank Theilmann, Otto-Brenner-Str. 4a, 47877 Willich, Germany, (employeerepresentative)

a g a i n s t

Xenexx Corp. Limited, Flat/Rm 901 9/F Tamson Plaza 161 Wai Yip Street Kwun Tong, Kl, Special Administrative Region of the People's Republic of China, (applicant), represented by Niall Tierney, 17 Castle Street, Dalkey, Dublin A96 AH57, Ireland (professional representative).

On 21/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 684 515 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the goods in class 9 of European Union trade mark application No 14 903 892. The opposition is based on, inter alia, United Kingdom word trade mark registration No UK00002431074 XENYX in class 9 (see below the detailed list of the other nine earlier trade marks). The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

to 9) XENYX 10)
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 notice of opposition was not accompanied by any evidence as regards the earlier trade marks on which the opposition is based, namely:

1. United Kingdom trade mark registration No UK 00002 431 074 XENYX (word) in class 9.
2. Austrian trade mark registration No 235 507 XENYX (word) in class 9.
3. Benelux trade mark registration No 806 502 XENYX (word) in class 9.
4. Danish trade mark registration No VR 2007 00493 XENYX (word) in class 9.
5. Greek trade mark registration No F152007 XENYX (word) in class 9.
6. Italian trade mark registration No 0001215001 XENYX (word) in class 9.
7. Polish trade mark registration No R.207331 XENYX (word) in class 9.
8. Portuguese trade mark registration No 000406011 XENYX (word) in class 9.
9. Swedish trade mark registration No 385 972 XENYX (word) in class 9.
10. French trade mark registration No 06 346 4479 in class 9.

On 21/04/2016 and then after a suspension on 21/10/2016 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit finally expired on 26/02/2017.

The opponent did not submit any evidence concerning the substantiation of the earlier trade marks.

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.

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.

The Opposition Division

Lena FRANKENBERG GLANTZ

Jessica LEWIS

Julie GOUTARD

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

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