OPPOSITION No B 2 470 279

Ecoveg Chemical Europe - Ciências Nutricionais e Biológicas, S.A., Estrada Municipal 502, Pau Queimado, 2870-705 Montijo, Portugal (opponent), represented by Furtado - Marcas e Patentes, S.A., Avenida Duque de Ávila, 66-7º, 1050-083 Lisbon, Portugal (professional representative)

a g a i n s t

Tofutown.com GmbH, Tofustraße 1, 54578 Wiesbaum, Germany (applicant), represented by Wilde Beuger Solmecke, Kaiser-Wilhelm-Ring 27-29, 50672 Cologne, Germany (professional representative).

On 26/02/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 470 279 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the services of Community trade mark application No 13 392 915 for the word mark ‘EcoVeg’, in Classes 35 and 42. The opposition is based on Portuguese trade mark registration No 352 133, for the figurative sign , which is registered for goods in Class 1. The opponent invoked Article 8(1)(b) CTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) CTMR, if the applicant so requests, the opponent shall furnish proof that, during the period of five years preceding the date of publication of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services in respect of which it is registered and which it cites as justification for its opposition, or that there are proper reasons for non-use.

According to the same provision, in the absence of such proof the opposition must be rejected.

The applicant requested that the opponent submit proof of use of earlier Portuguese trade mark registration No 352 133, on which the opposition is based.

The request was filed in due time and it is admissible given that the earlier trade mark was registered more than five years prior to the publication of the contested application. In fact, the contested trade mark application was published on 04/11/2014. The opponent’s earlier Portuguese trade mark No 352 133 was registered on 05/11/2001.

On 19/08/2015 the opponent was given two months to file the requested proof of use, originally due to expire on 24/10/2015.

However, on 19/10/2015 the opponent requested a two-month extension to the period for submitting proof of use. On 20/10/2015, the Office extended this period to 24/12/2015.

The opponent did not furnish any evidence concerning the use of the earlier trade mark on which the opposition is based. It did not argue that there were proper reasons for non-use either.

According to Rule 22(2) CTMIR, if the opposing party does not provide such proof before the time limit expires, the Office shall reject the opposition.

Therefore, the opposition must be rejected pursuant to Article 42(2) CTMR and Rule 22(2) CTMIR.

COSTS

According to Article 85(1) CTMR, 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 (7)(d)(ii) CTMIR, 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

Andrea VALISA

Karin KUHL

Jessica LEWIS

According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. 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 800 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) CTMIR, 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 (Article 2(30) CTMFR) has been paid.