OPPOSITION No B 3 007 724

Shanghai Xuanfeng Trade LLC., Room 1105 Building 11 No. 500, Shengxin South Road Jiading District, Shanghai, China (opponent), represented by Carolina María Sánchez Margareto, Calle Guardia Civil Num. 22, Esc 6, 2º, pta 5, 46020 Valencia, Spain (professional representative)

a g a i n s t

Wang Zhaobo, No.819 Yangri Community, Yangri Town, Lin Dist., Shennongjia City, Hubei, China (applicant), represented by Isabelle Bertaux, 55 rue Ramey, 75018 Paris, France (professional representative).

On 23/01/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 007 724 is rejected as inadmissible.

2. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against all the goods of European Union trade mark application No 17 093 311 for the word mark ‘SMAEL’, namely for all goods in Classes 14 and 25. The opposition is based on European trade mark registration No 17 474 156 for the word mark ‘SMAEL’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

ADMISSIBILITY

The examination of the notice of opposition has shown that it is inadmissible because the mark on which the opposition is based is not actually an earlier right within the meaning of Article 8(2) EUTMR.

The filing date of the contested EUTM application No 17 093 311 is 11/08/2017. No priority has been claimed.

The filing date of the opponent’s EUTM registration No 17 474 156 is 13/11/2017 and no priority has been claimed.

Therefore, the filing date of the opponent’s EUTM registration No 17 474 156, on which the opposition is based, is not in fact earlier than the filing date of the contested EUTM application. Consequently, the EUTM registration No 17 474 156 cannot be considered as an earlier right within the meaning of Article 8(2) EUTMR.

The Office informed the opponent of the deficiency in its notification dated 13/11/2018. The opponent was set a time limit until 18/12/2018, to submit any comments on the matter.

The opponent did not reply within the prescribed time limit.

The opposition must therefore, be rejected as inadmissible.

Please note that the opposition fee will not be refunded. In accordance with Article 6(5) EUTMDR (former Rule 18(5) EUTMIR, in force before 01/10/2017), the Office only refunds the opposition fee in the event of a withdrawal and/or restriction of the trade mark during the cooling-off period.

The Opposition Division

Begoña URIARTE VALIENTE

Reet ESCRIBANO

Stanislava STOYANOVA

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.