OPPOSITION No B 2 635 160
Kompagniet Af 1991 A/S, Elholm 8, 6400 Sønderborg, Denmark (opponent), represented by Løje, Arnesen & Meedom Advokatpartnerselskab, Øster Allé 42, 6, 2100 København Ø, Denmark (professional representative)
a g a i n s t
Seekers Event GmbH, Reinholdweg 2b, 07743 Jena, Germany (applicant), represented by Gruendelpartner Rechtsanwälte Steuerberater Wirtschaftsprüfer Part.Mbb, Leutragraben 2-4, 07743 Jena, Germany (professional representative).
On 08/06/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 635 160 is upheld for all the contested goods, namely
Class 25: Bandanas [neckerchiefs]; Fleeces; Waist belts; Scarfs; Shirts; Trousers; Coats; Skirts; Tee-shirts; Sweat shirts; Clothing; Headgear; Hats; Baseball caps; Caps with visors; Headbands [clothing]; Sun hats.
2. European Union trade mark application No 14 585 525 is rejected for all the contested goods. It may proceed for the remaining goods and services.
3. The applicant bears the costs, fixed at EUR 650.
REASONS:
The opponent filed an opposition against some of the goods and services of European Union trade mark application No 14 585 525, namely against some of the goods in Class 25. The opposition is based on Danish trade mark registration No VR 200 400 454. The opponent invoked Article 8(1)(a) EUTMR.
Preliminary remark
The opposition was also based on European Union trade mark registration No 3 945 334. However, this trade mark was cancelled according to the decision of the Cancellation Division, No 12 341 C, on 20/01/2017 and cannot therefore stand anymore as a basis for the present opposition. It is therefore not necessary to examine the evidence of use submitted by the opponent in relation to this mark. It is worth clarifying that the opponent did not explicitly request evidence of use of Danish trade mark registration No VR 200 400 454.
DOUBLE IDENTITY — ARTICLE 8(1)(a) EUTMR
Pursuant to Article 8(1)(a) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for will not be registered if it is identical to the earlier trade mark and the goods or services for which registration is applied for are identical to the goods or services for which the earlier trade mark is protected.
- The goods
The goods on which the opposition is based are the following:
Class 25: Clothing, headgear.
The contested goods are the following:
Class 25: Bandanas [neckerchiefs]; fleeces; waist belts; scarfs; shirts; trousers; coats; skirts; tee-shirts; sweat shirts; clothing; headgear; hats; baseball caps; caps with visors; headbands [clothing]; sun hats.
Clothing and headgear are identically contained in both lists of goods.
The contested bandanas [neckerchiefs]; fleeces; waist belts; scarfs; shirts; trousers; coats; skirts; tee-shirts; sweat shirts; headbands [clothing] are included in the broad category of the opponent’s clothing. Therefore, they are identical.
The contested hats; baseball caps; caps with visors; sun hats are included in the broad category of the opponent’s headgear. Therefore, they are identical.
- The signs
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SMS
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SMS
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Earlier trade mark |
Contested sign |
The signs are identical.
- Global assessment, other arguments and conclusion
The signs were found to be identical and all the contested goods are identical. Therefore, the opposition must be upheld under Article 8(1)(a) EUTMR for all these goods.
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 applicant is the losing party, it must bear the opposition fee as well as the costs incurred by the opponent in the course of these proceedings.
According to Rule 94(3) and (6) and Rule 94(7)(d)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation which are to be fixed on the basis of the maximum rate set therein.
The Opposition Division
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Birgit FILTENBORG |
Erkki MÜNTER |
Marianna KONDAS |
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.