OPPOSITION Nо B 3 048 507

 

Manitowoc Foodservice Companies Llc, 2227 Welbilt Boulevard, 34655 New Port Richey, United States of America (opponent), represented by Rapisardi Intellectual Property Limited, 2A Collier House 163/169 Brompton Road, SW3 1PY London, United Kingdom (professional representative) 

 

a g a i n s t

 

Sielaff Gmbh & Co. Kg Automatenbau, Münchenerstr. 20, 91567 Herrieden, Germany (applicant), represented by Isarpatent - Patent- und Rechtsanwälte Barth - Charles - Hassa - Peckmann & Partner mbB, Friedrichstrasse 31, 80801 München, Germany (professional representative).

On 07/05/2021, the Opposition Division takes the following

 

 

DECISION:

 

1.	Opposition No B 3 048 507 is rejected in its entirety.

 

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

 

REASONS

 

On 21/03/2018, the opponent filed an opposition against all the goods of European Union trade mark application No 17 594 219 'SiVend' (word mark), namely against all the goods in Classes 7, 9, and 11. The opposition is based on Italian trade mark registration No 1 479 308 for the figurative mark , Spanish trade mark registration No 1 675 051 'SERVEND' (word mark), German national trade mark registration No 2 048 840 'SerVend' (word mark) and German national trade mark registration No 302 012 051 515, 'SERVEND' (word mark). 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.

  

On 26/10/2020, the applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based, namely Italian trade mark registration No 1 479 308, Spanish trade mark registration No 1 675 051 and German national trade mark registrations No 2 048 840 and No 302 012 051 515. 

 

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

 

On 17/11/2020 the opponent was given two months to file the requested proof of use until 22/01/2021.

 

The opponent did not submit any evidence concerning the use of the earlier trade marks 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) and (3) EUTMR and Article 10(2) EUTMDR.

 

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the opponent are the opposition fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

 

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, 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

Brigitte MARTIN ARRIBAS

Laurence DUBOIS-LUKOWIAK

 

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.