OPPOSITION No B 2 745 860

Hydrogenious Technologies GmbH, Weidenweg 13, 91058 Erlangen, Germany (opponent), represented by Rau, Schneck & Hübner Patentanwälte Rechtsanwälte PartGmbB, Königstraße 2, 90402 Nürnberg, Germany (professional representative)

a g a i n s t

Hydrogenics Corporation, 220 Admiral Boulevard, L5T 2N6 Mississauga, Canada (applicant), represented by Mewburn Ellis LLP, City Tower, 40 Basinghall Street, EC2V 5DE London, United Kingdom (professional representative).

On 21/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 745 860 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 of European Union trade mark application No 15 320 311 for the word mark ‘HYDROGENICS’, namely against all the goods and services in Classes 7, 9, 11, 37, 39, 40 and 42. The opposition is based on German trade mark registration No 302013030544 for the word mark ‘hydrogenious’ and on international trade mark registration No 1 255 350 for the word mark ‘hydrogenious’ designating European Union. The opponent invoked Article 8(1)(b) EUTMR.

SUBSTANTIATION

According to Article 95(1) EUTMR, in proceedings before it the Office will examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office is restricted in this examination to the facts, evidence and arguments submitted 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 Article 7(1) EUTMDR, the Office will give the opposing party the opportunity to submit 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 Article 7(2) EUTMDR, within the period referred to above, the opposing party must also file evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as evidence proving its entitlement to file the opposition.

In particular, if the opposition is based on a registered trade mark that is not a European Union trade mark, the opposing party must submit 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 Article 7(1) EUTMDR and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Article 7(2)(a)(ii) EUTMDR. Where the evidence concerning the registration of the trade mark is accessible online from a source recognised by the Office, the opposing party may provide such evidence by making reference to that source — Article 7(3) EUTMDR.

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 25/08/2016 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit was extended and expired on 30/10/2018.

The opponent did not submit any evidence concerning the substantiation of the earlier trade marks. Moreover, the opponent did not make reference to evidence accessible online from a source recognised by the Office.

According to Article 8(1) EUTMDR, if until expiry of the period referred to in Article 7(1) EUTMDR, the opposing party has not submitted any evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, or where the evidence submitted is manifestly irrelevant or manifestly insufficient, the opposition will be rejected as unfounded.

The opposition must therefore be rejected as unfounded.

COSTS

According to Article 109(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 Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Begoña URIARTE VALIENTE

Reet ESCRIBANO

Alina FRUNZA

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.