OPPOSITION No B 2 679 614
Lightest Components Ltd., 11, Odrin str., ent. B, fl. 4, suite 100a, 1000 Sofia, Bulgaria (opponent), represented by Julia Radanova, Lightest Components Ltd., 11, Odrin str., ent. B, fl. 4, suite 100a, 1000 Sofia, Bulgaria (employee representative)
a g a i n s t
Olsberg GmbH, Hüttenstr. 38, 59939 Olsberg, Germany (holder), represented by Fritz Patent- und Rechtsanwälte Partnerschaft mbB, Apothekerstr. 55, 59755 Arnsberg, Germany (professional representative).
On 22/06/2017, the Opposition Division takes the following
1. Opposition No B 2 679 614 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against some of the goods and services of international registration designating the European Union No 1 265 779, namely against all the goods in Classes 6 and 12. The opposition is based on European Union trade mark registration No 13 224 464 for goods and services in Classes 6, 12 and 35. The opponent invoked Article 8(1)(a) and (b) EUTMR.
Earlier trade mark
EARLIER MARK PURSUANT TO ARTICLE 8(2) EUTMR
According to Article 41(1)(a) EUTMR, the proprietor of an earlier trade mark referred to in Article 8(2) EUTMR may file an opposition against the registration of a European trade mark application.
According to Article 8(2) EUTMR an ‘earlier trade mark’ is defined as a trade mark with a date of application for registration which is earlier than the date of application for registration of the European trade mark, taking into account, where appropriate, of the priorities claimed in respect of those trade marks.
Therefore, the legal basis of an opposition requires the existence of an earlier right within the meaning of Article 8(2) EUTMR.
In the present case, the contested international registration designating the European Union was registered on 15/11/2014 and enjoys a priority date of 03/06/2014 as shows the evidence submitted. The earlier EUTM was filed on 03/09/2014 and no priority was claimed.
Therefore, the opponent’s EUTM does not constitute an earlier trade mark within the meaning of Article 8(2) EUTMR and does not comply with the requirements of the abovementioned article.
The opposition must, therefore, be rejected as unfounded.
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.
The Opposition Division
Chantal VAN RIEL
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.