OPPOSITION No B 2 776 600

Imagina T Europa S.L., C/ Serrano, 41 3ª planta, 28001 Madrid, Spain (opponent), represented by Cremades & Calvo-Sotelo, Calle Jorge Juan, 30, 6ª, 28001 Madrid, Spain (professional representative)

a g a i n s t

BEST, Łużycka 8a, 81-537 Gdynia, Poland (applicant), represented by Izabela Piekarska, Ul. Łużycka 8a, 81-537 Gdynia, Poland (professional representative).

On 21/08/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 776 600 is rejected in its entirety.

2.        The opponent bears the cost, fixed at Euro 300.

REASONS:

The opponent filed an opposition against all the services of European Union trade mark application No 15 556 699 for the figurative trade mark, namely those in Class 42. The opposition is based on European Union trade mark application No 15 556 699 for the figurative trade mark . The opponent invoked Article 8(1)(b)  EUTMR.

According to Article 41(1)(a) EUTMR, within a period of three months following the publication of an EU trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 EUTMR by the proprietors of earlier trade marks referred to in Article 8(2) EUTMR, in respect of Article 8(1) and (5) EUTMR.

According to Article 8(2)(a) EUTMR, earlier trade marks within the meaning of Article 8(1) EUTMR are those trade marks with a date of application for registration which is earlier than the date of application for registration of the European Union trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks.

Therefore, the legal basis of the opposition requires the existence and validity of an earlier right within the meaning of Article 8(2) EUTMR.

In the present case, the filing date of the contested sign is 17/06/2016.

The notice of opposition filed on 23/09/2016, contains one mark as basis of the opposition, namely European Union trade mark application No 15 556 699, also filed on 17/06/2016.

This date is identical to the valid filing date of the contested sign and, therefore, the mark on which the opposition is based is not an earlier right within the meaning of Article 8(2) EUTMR.

Indeed, for an earlier right to be earlier it must have, in the absence of any priority, an
application date that is prior to the day on which the contested EUTM application was
filed.

As it is apparent from the facts exposed above, the EUTM application No 15 556 699 cannot constitute a valid trade mark on which the opposition can be based within the meaning of Article 41(1)(a) EUTMR and Article 8(2) EUTMR.  Therefore, the present opposition does not have a legal basis and, accordingly, does not comply with the requirements of the abovementioned legal provisions.

In view of all the foregoing the opposition must 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

Oana-Alina STURZA

Edith Elisabeth VAN DEN EEDE

Michele M. BENEDETTI-ALOISI

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.