OPPOSITION No B 435 083

Logic 3 International Limited, Rhodes Way, Watford WD24 4YW, United Kingdom   (opponent), represented by Forresters, Sherborne House, 119-121 Cannon Street, London EC4N 5AT, United Kingdom (professional representative)

a g a i n s t

Harman International Industries Incorporated, 8500 Balboa Blvd., Northridge,  California 91329, United States of America  (applicant), represented by Boult Wade Tennant, Verulam Gardens, 70 Gray's Inn Road, London  WC1X 8BT, United Kingdom  (professional representative).

On 13/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 435 083 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 1 984 905. The opposition was based on European Union trade mark registration No 231 894. The opponent invoked Article 8(1)(b) EUTMR.

LOGIC 3
Earlier trade mark	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 trade mark which is not yet registered, the opposing party must provide a copy of the relevant filing certificate or an equivalent document emanating from the administration with which the trade mark application was filed (except in the case of a European Union trade marks) – Rule 19(2)(a)(i) CTMIR.

However, this naturally does not mean that an earlier European Union trade mark need not be existing and valid both at the expiry of the substantiation period and at the moment of rendering the decision on opposition.

In cases in which earlier European Union trade marks are invoked, the Opposition Division is entitled to check their details, ex officio, in the European Union trade mark registry. Upon having done so, the Opposition Division has established that the earlier European Union trade mark, on which the opposition is based, had expired on 19/04/2016.

The opposition must fail because the only alleged earlier right has ceased to exist and cannot therefore serve as a basis of an opposition.

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

María Clara IBÁÑEZ FIORILLO

Francesca CANGERI SERRANO

Erkki MÜNTER

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.