OPPOSITION No B 2 568 064
Landwirtschaftliche Bezugsgenossenschaft eG, Südring 8, 49401 Damme, Germany (opponent), represented by RAe Poggemann, Kollegienwall 5, 49074 Osnabrück, Germany (professional representative)
a g a i n s t
Raisioagro Ltd, Raisionkaari 55, 21200 Raisio, Finland (applicant), represented by Heinonen & Co, Fabianinkatu 29 B, 00100 Helsinki, Finland (professional representative).
On 17/01/2017, the Opposition Division takes the following
1. Opposition No B 2 568 064 is rejected in its entirety.
2. The opponent bears the costs, fixed at EUR 300.
The opponent filed an opposition against all the goods in Class 31 of European Union trade mark application No 14 186 993 for the figurative mark . The opposition is based on German trade mark registration No 3 020 140 219 58 for the word mark ‘Silver Vitesse’, German trade mark registration No 302 014 021 961 for the word mark ‘Silver Allegro’, German trade mark registration No 302 014 021 960 for the word mark ‘Silver Bellina’, German trade mark registration No 302 014 021 964 for the word mark ‘Silver Rapido’. The opponent invoked Article 8(1)(b) EUTMR.
According to Article 76(1) EUTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be 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 shall 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 shall 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 registered trade mark which is not a European Union trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Rule 19(2)(a)(ii) EUTMIR.
In the present case, firstly the opponent submitted evidence on 15/09/2015 and on 16/09/2015 consisting of four registration certificates of the German Patent and Trade Mark Office of the German trade mark registrations No 302 014 021 958, No 302 014 021 961, No 302 014 021 960 and No 302 014 021 964. These certificates are in German and they are accompanied by their translation into English, which is the language of the present proceedings.
However, the evidence mentioned above is not sufficient to substantiate the opponent’s earlier trade mark, because it does not contain all the necessary elements, i.e. the list of goods and services.
On 24/11/2015 the Opposition Division set a deadline for the opponent to file proof of use, facts, evidence and arguments in support of his opposition, or to complete any such facts, evidence and arguments contained in the notice of opposition. This deadline, after an extension requested by the opponent and granted by the Opposition Division, expired on 29/05/2016.
On 24/05/2016 the opponent submitted eight pages related to the aforementioned German trade mark registrations, all of them consisting of translations of extracts of the DPMA (German Patent and Trade Mark Office) register and containing ‘Register information’.
The opponent submitted the required evidence, namely the original extracts of the DPMA register, on 28/09/2016, that is, only after the expiry of the abovementioned time limit.
According to Rule 19(4) EUTMIR, the Office shall not take into account written submissions or documents, or parts thereof, that have not been submitted, or that have not been translated into the language of the proceedings, within the time limit set by the Office.
According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, the opposition shall be rejected as unfounded.
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 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
VAN DEN EEDE
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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.