OPPOSITION No B 2 795 154
Ameva Fine Food Europe, 152, "6-th September" Bvd., office 3-4B, 4000 Plovdiv, Bulgaria (opponent)
a g a i n s t
Ameva Europe OOD, floor 2, Hadji Dimitar Asenov Street 86, 6000 Stara Zagora, Bulgaria (holder).
On 26/04/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 795 154 is rejected in its entirety.
2. The opponent bears the costs.
REASONS:
The opponent filed an opposition against all the goods of international registration designating the European Union No 1 301 845, namely against all the goods in Class 29. The opposition is based on European Union trade mark application No 14 717 961 and Bulgarian trade mark registration No 94 995. The opponent invoked Article 8(1)(a) and (b) and Article 8(5) EUTMR.
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Earlier trade marks |
Contested sign |
ADMISSIBILITY – EUROPEAN UNION TRADE MARK APPLICATION No 14 717 961
On 28/12/2015, the holder filed the international application designating the European Union No 1 301 845.
On 28/10/2016, the opponent filed an opposition against all the goods of said application, namely against all the goods in Class 29. The opposition is based inter alia, on European Union trade mark application No 14 717 961 for goods in Classes 29 and 30.
Article 41(1)(a) EUTMR provides that notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 by the proprietors of earlier trade marks referred to in Article 8(2) EUTMR.
Article 8(2) EUTMR provides that 'earlier trade marks' means trade marks with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks.
Therefore, an opposition must be based on an earlier mark within the meaning of article 8(2) EUTMR.
In the present case, international application designating the European Union No 1 301 845 was filed on 28/12/2015 whereas European Union trade mark application No 14 717 961 on which the opposition is based was filed on 22/10/2015. However, international application designating the European Union No 1 301 845 has a priority based on Bulgarian trade mark application/registration No 137 971, filed on 13/08/2015. This date is earlier than the filing date of European Union trade mark application No 1 4717 961 on which the opposition is based. Therefore, the opposition is not based on an earlier mark within the meaning of Article 8(2) EUTMR.
The Office informed the opponent of this deficiency in its notification dated 21/11/2016.
The opposition must therefore, be rejected as inadmissible, as far as it is based on this mark.
SUBSTANTIATION – BULGARIAN TRADE MARK REGISTRATION No 94 995
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 Bulgarian trade mark registration No 94 995 on which the opposition is based.
On 21/11/2016, 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 02/04/2017.
The opponent did not submit any evidence concerning the substantiation of the earlier trade mark.
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 this earlier mark.
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 holder 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 holder are the costs of representation which are to be fixed on the basis of the maximum rate set therein. In the present case the holder did not appoint a professional representative within the meaning of Article 93 EUTMR and therefore did not incur representation costs.
The Opposition Division
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Alexandra APOSTOLAKIS |
Martina GALLE |
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.