OPPOSITION No B 3 056 432

Adega Cooperativa de Pinhel, Largo dos Combatentes da Grande Guerra, Pinhel, Portugal (opponent), represented by Ricardo Avelãs Nunes, Rua da Republica, 46, 1º, 6400-440, Pinhel, Portugal (professional representative)

a g a i n s t

Woodlab Distillery Limited, 14 Lisgobban Road, BT71 7PT, Benburb, Dungannon, United Kingdom (applicant), represented by ANSONS, 4th Floor, Imperial House, 4-10 Donegall Square East, BT1 5HD, Belfast, United Kingdom (professional representative).

On 20/11/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 056 432 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 17 788 407 for the word mark 'SYMPHONIA NO. 1', namely against all the goods in Class 33. The opposition is based on European Union trade mark application No 17 788 407 for the word mark 'SYMPHONIA NO. 1'.

The opponent invoked Article 8(1)(a) and (b) EUTMR.

ADMISSIBILITY

According to Article 2(2)(b) EUTMDR, the notice of opposition must contain a clear identification of the earlier mark or earlier right on which the opposition is based, namely:

i) where the opposition is based on an earlier mark within the meaning of Article 8(2)(a) or (b) EUTMR, the indication of the file number or registration number of the earlier mark, the indication whether the earlier mark is registered or an application for registration, as well as the indication of the Member States including, where applicable, the Benelux, in or for which the earlier mark is protected, or, if applicable, the indication that it is an EUTM.

According to Article 5(3) EUTMDR, if the notice of opposition does not clearly identify the earlier mark on which the opposition is based in accordance with Article 2(2)(b) EUTMDR, and if the deficiency has not been remedied before the expiry of the opposition period, the Office will reject the opposition as inadmissible.

Furthermore, according to Article 46 EUTMR, the opposition period refers to the period of three months that starts from the date of the publication of the contested EUTM application.

On 27/06/2018, the opponent filed notice of opposition against the contested application. The Notice of Opposition was accompanied by arguments that are in Portuguese, which is not the language of the proceedings (English) and therefore cannot be taken into account. The Office may consider only facts and arguments filed by the opponent in support of the opposition if they are submitted in the language of the proceedings or are accompanied by a translation. The Office will not request the opponent to send a translation; it has to send one on its own initiative. If no translation has been submitted within the time limit set, pursuant to Article 7(5) EUTMDR, the written submissions which have not been translated into the language of proceedings will not be taken into account.

The opponent failed to clearly identify the earlier trade mark right on which it is based. The opposition notice indicates the earlier right as being the contested trade mark application itself. Therefore, the earlier right on which the opposition is claimed to be based within the meaning of Article 8(2) EUTMR has not been clearly identified.

Since the above mentioned deficiency was not remedied before the expiry of the opposition period, namely before 27/06/2018 (the contested EUTM application was published on 27/03/2018), the opposition is herewith 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

María del Carmen SUCH SANCHEZ

Alina FRUNZA

Reet ESCRIBANO

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.