CANCELLATION No 12 435 C (INVALIDITY)

Seva-Seed, Mušlov 1702/608e, 692 01 Mikulov, The Czech Republic (applicant), represented by Danék & Partners, Vinohradská 17, 120 00 Prague 2, The Czech Republic (professional representative)

a g a i n s t

Simon Seeds, s.r.o., Račianska 188, 83105, Slovakia (EUTM proprietor), represented by Laws, s.r.o., Rajská 7, 81108 Bratislava, Slovakia (professional representative).

On 04/08/2021, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is rejected as inadmissible.

2. The fee for the application for a declaration of invalidity will not be refunded.

REASONS

The applicant filed an application for a declaration of invalidity in respect of European Union trade mark No 13 533 906 (figurative mark), hereinafter the EUTM. The application is directed against all the goods and services covered by the EUTM, namely goods and services in classes 31, 39 and 44.

The application is based on the earlier non-registered trade mark “SEVA”, the earlier trade name “SEVA” and the earlier company name “SEVA” protected in the European Union, Bulgaria, the Czech Republic, Germany, Austria, Poland and Slovakia.

The applicant invoked Articles 53(1)(c) and 53(2)(d) EUTMR.

GROUNDS FOR THE DECISION

On the admissibility

In the present case, the application is based on three different earlier rights, namely an earlier non-registered trade mark, an earlier trade name and an earlier company name. The application did not comply with Rule 37(b)(ii) EUTMIR. In particular, it did not contain the goods and services/commercial activities on which the application for invalidity for these three earlier rights is based as required by Rule 37(b)(ii) EUTMIR. The application form merely indicates the class numbers but not the goods and services or activities as such.

On 19/02/2016 the Cancellation Division invited the applicant to remedy these deficiencies within two months. The time limit expired on 19/04/2016. The applicant did not file any observations in reply; thus, it did not remedy the deficiencies before the time limit expired.

Therefore, pursuant to Rule 39(3) EUTMIR, the application must be rejected as inadmissible as far as it is based on the three different earlier rights, namely the earlier non-registered trade mark, the earlier trade name and the earlier company name.

On the grounds

In addition, the application for invalidity is also based on an industrial property right under Article 53(2)(d) EUTMR. This earlier right is indicated to be a “company name”.

According to the practice of the Office, Article 53(2) EUTMR applies only where the rights invoked are of such a nature that they are not considered typical rights to be invoked in cancellation proceedings under Article 53(1) EUTMR (decision of 13/12/2011, 4 033 C, § 12). A “company name” as indicated in the application for invalidity is of such a nature that it is considered a typical right to be invoked under Article 53(1) EUTMR. Therefore, Article 53(2) EUTMR does not apply to this right invoked by the applicant and it will therefore be considered, for the purposes of this decision, that the “company name” has been invoked by the applicant under Article 53(1)(c) in conjunction with Article 8(4) EUTMR, as in the case of the other earlier right (company name) on which the application is based and that Article 53(2)(d) EUTMR is not applicable.

Conclusion

Since the applicant did not submit any observations in reply and it did not remedy the deficiencies of any of the earlier rights before the time limit set for this purpose, the application must be rejected as inadmissible pursuant to Rule 39(3) EUTMIR.

INVALIDITY FEE

The fee for the application for a declaration of invalidity is due for filing the application, regardless of the outcome of the proceedings. Therefore, in cases of inadmissibility, it is not refunded to the applicant. The only provision that allows for the refund of the cancellation fee is Rule 39(1) EUTMIR, applicable only where the application is deemed, as a result of late payment, not to have been filed.

Therefore, in the present case, the fee for the application for a declaration of invalidity will not be refunded.

The Cancellation Division

Vanessa PAGE

Claudia SCHLIE

Carmen SÁNCHEZ PALOMARES

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.