OPPOSITION No B 2 929 084

TKH France, Air Park de Paris - ZAC des Hauts de Wissous - Bâtiment 4 3, rue Jeanne Garnerin, 91320 Wissous, France (opponent), represented by Cabinet August & Debouzy, 6, avenue de Messine, 75008 Paris, France (professional representative)

a g a i n s t

Shenzhen Trangjan Technology Co. Ltd., Zone B 2 F factory 3 Daxin Huada Ind. Park Shuibei North rd. Shangcun Community Gongming Block Baoan District, Shenzhen Guangdong Province, People’s Republic of China (applicant), represented by Eurochina Intellectual Property, Calle San Mateo 65 - Local 1 "Llopis & Asociados", 03012 Alicante, Spain (professional representative).

On 17/05/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 929 084 is rejected in its entirety.

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

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR shall be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 16 488 306, namely against some of the goods in Class 9. The opposition is based on French trade mark registration No 3 441 627. The opponent invoked Article 8(1)(b) EUTMR.

Earlier trade mark	Contested sign

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.

According to Article 7(4) EUTMDR, any filing, registration or renewal certificates or equivalent documents referred to in Article 7(2)(a), (d) or (e) EUTMDR, including evidence accessible online as referred to in Article 7(3) EUTMDR must be in the language of the proceedings or accompanied by a translation into that language. The translation must be submitted by the opposing party on its own motion within the time limit specified for submitting the original document.

In the present case, the evidence filed by the opponent is not in the language of the proceedings.

On 25/07/2017 the opponent was given two months, commencing after the ending of the cooling-off period, to submit the required evidence and respective translations. This time limit expired on 30/11/2017.

The opponent did not submit the necessary translations.

According to Article 7(4) EUTMDR, translations submitted after the expiry of the relevant time limits will not be taken into account. Furthermore, according to Article 7(5) EUTMDR, the Office will not take into account written submissions or documents, or parts thereof, that have not been submitted in or that have not been translated into the language of the proceedings, within the time limit set by the Office.

It follows that the evidence filed by the opponent cannot be taken into account.

According to Article 8(1) EUTMDR, if until expiry of the period referred to in Article 7(1) EUTMDR, the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, 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

Anna ZIOLKOWSKA

Anna ZIOLKOWSKA

Begoña URIARTE VALIENTE

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Article 109(8) EUTMR (former Rule 94(4) EUTMIR, in force before 01/10/2017), such a request must be filed within one month of the date of notification of this fixation of costs and will be deemed to have been filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.