BINGSALE | Decision 2750563
Date Published: Oct 2, 2017
OPPOSITION No B 2 750 563
Jawad Hussain Abdul Hamid, 41 Osborne Road South Southampton, Southampton Hampshire so172fd, United Kingdom (opponent).
a g a i n s t
Danibos, Ltd., 71-75, Shelton Street, Covent Garden, London City of WC2H 9JQ, United Kingdom (applicant).
On 03/03/2017, the Opposition Division takes the following
1. Opposition No B 2 750 563 is rejected as inadmissible.
2. The opposition fee will not be refunded.
The opponent filed an opposition against some of the goods of European Union trade mark application No 15 419 278 namely against some of the goods in Class 9. The opposition is based on European Union trade mark registration No 15 484 413. The opponent invoked Article 8(1)(a) and (b), and Article 8(5), EUTMR.
Earlier trade mark
According to Article 41(1)(a) EUTMR, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 by the proprietors of earlier trade marks referred to in Article 8(2) EUTMR.
According to Article 8(2)(a) EUTMR, ‘earlier trade marks’ means trade marks with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks.
Therefore, an opposition must be based on an earlier mark within the meaning of article 8(2) EUTMR.
In the present case, the applicant filed the European trade mark application No 15 419 278 on 11/05/2016. On 10/08/2016, the opponent filed an opposition against some of the goods in class 9 of said application. The opposition is based on European Union trade mark registration No 15 484 413 for goods in Class 21 filed on 29/05/2016. However, European trade mark application No 15 419 278 was filed on 11/05/2016, namely a date prior to the filing date of European Union trade mark registration No 15 484 413 on which the opposition is based. Therefore, the opposition is not based on an earlier mark within the meaning of Article 8(2) EUTMR.
The Office informed the opponent of this deficiency in its notification dated 22/09/2016. The opponent was set a time limit of two months, until 27/11/2016, to submit any comments on the matter to the Office. The opponent did not reply within the prescribed time limit.
The opposition must, therefore, be rejected as inadmissible.
Please note that the opposition fee will not be refunded. In accordance with Rule 18(5) EUTMIR, the Office only refunds the opposition fee in view of a withdrawal and/or restriction of the trade mark during the cooling-off period.
The Opposition Division
Pedro JURADO MONTEJANO
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.