OPPOSITION No B 3 047 871

Liaoning Qlanye Commercial & Trade Co., Ltd., No. 35-37 Renmin Road, Zhongshan District, Dalian, Liaoning, China (opponent), represented by Isern Patentes y Marcas, S.L., Avenida Diagonal, 463 bis, 2° piso, 08036 Barcelona, Spain (professional representative)

a g a i n s t

Winner Europe Sp. z o.o., Al. Krakowska 129/2, 05-552 Wolka Kosowska, Poland (applicant]), represented by Polservice Patent and Trademark Attorneys Office, Bluszczańska 73, 00-712 Warszawa, Poland (professional representative).

On 16/05/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 047 871 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against part of the goods of European Union trade mark application No 17 226 101 , namely against all the goods in Class 18. The opposition is based on European Union trade mark registration No 7 242 035 . The opponent invoked Article 8(1)(b) EUTMR.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority 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 for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade mark on which the opposition is based, namely European Union trade mark No 7 242 035  .

The request was filed in due time and is admissible given that the earlier trade mark was registered more than five years prior to the relevant date mentioned above.

On 17/12/2018, the opponent was given two months to file the requested proof of use. The deadline to submit the proof of use was until 22/02/2019.

The opponent did not submit 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 Article 10(2) EUTMDR, if the opposing party does not provide such proof before the time limit expires, the Office will reject the opposition.

Therefore, the opposition must be rejected pursuant to Article 47(2) EUTMR and Article 10(2) EUTMDR.

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

Manuela RUSEVA

Maria Clara IBAÑEZ FIORILLO

Sylvie ALBRECHT