OPPOSITION No B 2 684 168

CBR Textile GmbH, Hunäusstr. 5, 29227 Celle, Germany (opponent), represented by Lorenz Seidler Gossel Rechtsanwälte Patentanwälte Partnerschaft mbB, Widenmayerstr. 23, 80538 München, Germany (professional representative)

a g a i n s t

Felix Favor Parker and Marcus Fairfax Fountaine, C/O Narford Hall, Kings Lynn Norfolk PE32 1JA, United Kingdom (applicants), represented by McDaniel & Co., 19 Portland Terrace, Jesmond, Newcastle upon Tyne NE2 1QQ, United Kingdom (professional representative).

On 14/10/2016, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 684 168 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, included in Classes 18, 25 and 26, of European Union trade mark application No 14 955 116. The opposition is based on German trade mark registrations No 302 012 036 499 and No 3 020 120 469 450. The opponent invoked Article 8(1)(b) EUTMR.

FAVORS!	FAIRFAX & FAVOR
Earlier trade marks	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 his earlier mark or earlier right, as well as evidence proving his 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 (which is the case in the present proceedings where the opponent invoked two earlier German trade mark registrations), 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.

In the present case, the notice of opposition was not accompanied by any evidence as regards the earlier trade marks on which the opposition is based.

On 14/04/2016, the opponent was given two months, commencing after the ending of the cooling-off period, to submit further facts, evidence and arguments to support its claims. This time limit expired on 19/08/2016.

Along with the abovementioned communication inviting the opponent to complete the opposition, the Office forwarded an Information sheet providing practical guidance on substantiation of earlier rights. In section ‘Particulars to be proven’, it is expressly stated that for ‘earlier registration or trade mark (other than EUTM) all the formal and substantive particulars must be shown’. That is further explained in section ‘Means of evidence’, where registration certificates or equivalent official documents are mentioned among acceptable means of evidence.

Within the given time limit, the opponent did not submit any evidence concerning the substantiation of the earlier trade marks.

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 his earlier mark or earlier right, as well as his 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 applicants 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 applicants are the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Péter SIPOS

Solveiga BIEZA

María Belén IBARRA DE DIEGO

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.