OPPOSITION No B 3 063 149

Philipp Weiß, Gartenstraße 43, 99986 Oberdorla, Germany (opponent)

a g a i n s t

Medican A/S, Skovgårdsvej 27, 3200 Helsinge, Denmark (applicant), represented by Otello Lawfirm, Dalgasgade 25, 8, 7400 Herning, Denmark (professional representative).

On 16/09/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 063 149 is rejected as inadmissible.

2. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 17 902 814 for the word mark ‘Medican’, namely against all the goods in Class 5. The opposition is based on German trade mark registration No 302015041751 for the word mark ‘Medican’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

ADMISSIBILITY

According to Article 2(g) EUTMDR, the notice of opposition must indicate the goods and services on which each of the grounds for the opposition is based.

On 30/08/2018, the opponent filed a notice of opposition against the contested mark and indicated therein that the opposition is based on all of the goods and services covered by the earlier mark invoked. The opponent provided the list of goods and services on which the opposition is based only in German.

In the present case the goods and services on which the opposition is based have been indicated in a language other than the language of the opposition proceedings. According to Article 146(5) and (7) EUTMR, this information has to be submitted in the language of the opposition proceedings, namely English.

Since the goods and services on which the opposition is based cannot be taken into account due to the above-mentioned reason, the indication of goods and services on which each of the grounds for the opposition is based as required by Article 2(g) EUTMDR is missing.

According to Article 5(5) EUTMDR, if the notice of opposition does not comply with the provisions of Article 2(2)(d) to (h) EUTMDR, the Office will inform the opponent accordingly and invite it to remedy the deficiencies noted within a period of two months. If the deficiencies are not remedied before this time limit expires, the Office will reject the opposition as inadmissible.

In the present case, although due to an oversight the opposition was initially deemed admissible on 03/10/2018, this decision was subsequently revoked.

On 15/04/2019 the opponent has been given a time limit of two months to provide the list of the goods on which the opposition is based in the language of the proceedings. This time limit expired on 25/06/2019. The opponent did not remedy the deficiency.

Consequently, the opposition will be rejected as inadmissible. Please note that the opposition fee will not be refunded. In accordance with Article 6(5) EUTMDR, 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

Monika CISZEWSKA

Reet ESCRIBANO

Alina FRUNZA

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.