OPPOSITION No B 2 610 106

Richard Gras, 364, Chemin Des Agassons, 83340 Le Cannet Des Maures, France (opponent), represented by Fabrice Delsad-Battesti, Le tertia II, 5, rue Charles Duchesne, Pôle d'activités, 13851 Aix en Provence, France (professional representative)

a g a i n s t

Guangzhou Kugou Computer Technology Co., Ltd., Room 1301, Building 2, No. 16, Ke Yun Road, Tianhe District, Guangzhou City, Guangdong Province, People's Republic of China (applicant), represented by Haseltine Lake LLP, Redcliff Quay 120 Redcliff Street, Bristol BS1 6HU, United Kingdom (professional representative).

On 27/10/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 610 106 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 and services in Classes 9, 35, 38, 41 and 45 of European Union trade mark application No 14 624 911 for the figurative sign . The opposition is based on European Union trade mark registration No 8 704 249 for the word mark ‘KUGO’ in Classes 9 and 11. The opponent invoked Article 8(1)(b) and 8(5) EUTMR.

PROOF OF USE

In accordance with Article 42(2) and (3) EUTMR, 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 the trade mark 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.

On 13/07/2016 the opponent was given two months to file the requested proof of use.

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) EUTMIR, 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) EUTMR and Rule 22(2) EUTMIR.

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 applicant 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 applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Steve HAUSER

Loreto URRACA LUQUE

Volker MENSING

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.