OPPOSITION No B 2 805 557

O2 Worldwide Limited, 20 Air Street, London  W1B 5AN, United Kingdom (opponent), represented by Stobbs, Endurance House, Vision Park, Chivers Way, Cambridge, CB24 9ZR, United Kingdom (professional representative)

a g a i n s t

Notilo Plus, 4 Avenue Doyen Louis Weil, 38000 Grenoble, France (holder), represented by Novagraaf France, Bâtiment O2 – 2, rue Sarah Bernhardt, CS 90017, 92665 Asnières-sur-Seine, France (professional representative).

On 28/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 805 557 is rejected as inadmissible.

2.        The opposition fee will not be refunded.

REASONS:

The opponent filed an opposition against all the goods of international registration designating the European Union No 1 303 134, namely against all the goods in Class 09. The opposition is based on European Union trade mark registration No 15 145 279. The opponent invoked Article 8(1)(b), EUTMR.

BUBBLE	IBubble
Earlier trade mark	Contested sign

ADMISSIBILITY

An opposition must be based on an earlier right within the meaning of Article 8(2) EUTMR.  For an earlier right to be earlier it must have an application date that is prior to the day on which the contested EUTM application was filed or, in the case of an international registration designating the European Union, prior to the date of designation.

If either the earlier mark or the contested mark has claimed priority based on a previous filing and the priority has been accepted, then the priority date is the one to be taken into account.

In the present case the earlier right is European Union trade mark registration No 15 145 279 which was filed on 24/02/2016. The contested mark is international registration designating the European Union No 1 303 134 whose date of designation was 07/04/2016. However this international registration has an accepted priority based on the French application No 4 240 583 with the filing date 14/01/2016.

The date to be taken into consideration for the contested mark is the date of priority 14/01/2016. This date is before the filing date of the opponent’s mark 24/02/2016. It follows that the opponent’s mark is not an earlier right.

The Office informed the opponent of the deficiency in its notification dated 05/12/2016 and was informed that the deficiency could not be remedied. A time limit until 10/02/2017 was set for the opponent to submit comments. The opponent did not reply within the prescribed time limit.

Therefore, as the opponent’s mark is not an earlier mark within the meaning of Article 8(2) EUTMR, the opposition must be rejected as inadmissible in accordance with Rule 17(2) EUTMIR.

Please note that the opposition fee will not be refunded. In accordance with Rule 18(5) EUTMIR, the Office only refunds the opposition fee in view of a withdrawal and/or restriction of the trade mark during the cooling-off period.

The Opposition Division

Lynn BURTCHAELL

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.