OPPOSITION No B 2 722 489
Biomedal, S.L., Avda. Américo Vespucio 5-E, 1ª Pl., mód. 12 (Parque científico y Tecnológico Cartuja 93), 41092 Isla de la Cartuja, Andalucía, Spain (opponent), represented by Pons Consultores de Propiedad Industrial, S.A., Glorieta Rubén Darío, 4, 28010 Madrid, Spain (professional representative)
a g a i n s t
Viktor Heitzmann, Schönriedlstraße 17, 86971 Peiting, Germany (applicant), represented by Bartels und Partner Patentanwälte, Lange Str. 51, 70174 Stuttgart, Germany (professional representative).
On 25/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 722 489 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 and services of European Union trade mark application No 14 573 604 ‘BioMeda’, namely all the goods and services in Classes 5, 9, 27, 41, 42, 44, 45. The opposition is based on European Union trade mark registrations No 6 455 422 ‘BIOMEDAL DIAGNOSTICS’ and No 8 201 238 ‘’ and Spanish trade mark registration No 2 355 571 ‘BIOMEDAL’. The opponent invoked Article 8(1)(b) EUTMR.
PROOF OF USE
In accordance with Article 42(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority 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 the trade marks on which the opposition is based.
The request was filed in due time and it is admissible given that the earlier trade marks were registered more than five years prior to the relevant date mentioned above.
On 10/01/2017 the opponent was given two months to file the requested proof of use.
The opponent did not furnish any evidence concerning the use of the earlier trade marks on which the opposition is based. It did not argue that there were proper reasons for non-use either.
According to Rule 22(2) EUTMIR, if the opposing party does not provide such proof before the time limit expires, the Office will reject the opposition.
Therefore, the opposition must be rejected pursuant to Article 42(2) EUTMR and Rule 22(2) EUTMIR.
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
| José Antonio GARRIDO OTAOLA | Julie GOUTARD | Loreto URRACA LUQUE |
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.