OPPOSITION No B 2 678 061

Bimbo, S.A., C/ Josep Pla, 2-B2 (Torres Diagonal Litoral), 08019 Barcelona, Spain (opponent), represented by March & Asociados, Passeig de Gràcia, 103, 7ª Planta, 08008 Barcelona, Spain (professional representative)

a g a i n s t

Partner Foods Pty Ltd, 4 Gateway Avenue, Landsborough, QLD 4550, Australia (holder), represented by Frkelly, 27 Clyde Road, Ballsbridge, Dublin 4, Ireland (professional representative).

On 29/03/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 678 061 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 Classes 29 and 30, of international registration designating the European Union No 1 253 097. The opposition is based on Spanish trade mark registration No 3 568 488. The opponent invoked Article 8(1)(b) EUTMR.

	THE HAPPY SNACK COMPANY
Earlier trade mark	Contested sign

SUBSTANTIATION

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.

On 28/04/2016 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit expired on 03/09/2016.

The evidence filed by the opponent is an extract from a database. The evidence is not sufficient to substantiate the opponent’s earlier trade mark, because the document submitted is of unknown origin. It does not contain any official identification of the authority or database from which it originates.

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.

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 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

Erkki MÜNTER

Bekir GÜVEN

Natascha GALPERIN

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.