OPPOSITION No B 3 069 765

Attila Takács, Magyarhida utca 24., 1172 Budapest, Hungary (opponent), represented by Eszter Kaszás, Maros utca 28. 1 /4., 1122 Budapest, Hungary (professional representative)

a g a i n s t

Dog in the Box GmbH, Salzstraße 14, 6170 Zirl, Austria (applicant), represented by Guido Donath, Schmerlingstrasse 6, 6020 Innsbruck, Austria (professional representative).

On 02/08/2019, the Opposition Division takes the following

DECISION:

1. The decision on admissibility of the opposition of 16/01/2019 is revoked.

2. Opposition No B 3 069 765 is rejected as inadmissible.

3. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against all the goods and services in Classes 6, 20 and 35 of European Union trade mark application No 17 940 020 for the word mark ‘DOG IN THE BOX’. The opposition is based on European Union trade mark registration No 17 986 441 for the figurative mark . The opponent invoked Article 8(1)(b) EUTMR.

REVOCATION OF A DECISION ON ADMISSIBILITY

On 21/01/2019, the Office informed the parties about the intention to revoke its decision on admissibility of 16/01/2019. The reason for the revocation was a procedural error attributable to the Office, namely overlooking the fact that the EUTM No 17 986 441, indicated as a base of the opposition, is actually not an earlier right.

As neither of the parties has raised an objection within the set time limit, the Office hereby revokes the above mentioned decision according the reasons stated in its communication and in accordance with Article 103 EUTMR and Article 70(1) EUTMDR.

ADMISSIBILITY – ABSOLUTE REQUIREMENTS – EARLIER RIGHT NOT EARLIER

According to Article 46(1)(a) EUTMR, within a period of three months following the publication of an EUTM application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8:

a) by the proprietors of earlier trade marks referred to in Article 8(2) as well as licensees authorised by the proprietors of those trade marks, in respect of Article 8(1) and 8(5);

[…].

According to Article 8(2) EUTMR, for the purposes of Article 8(1) EUTMR, ‘earlier trade marks’ are those trade marks with a date of application for registration which is earlier than the date of application for registration of the (contested) European Union trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks. According to subparagraph (b) of the same Article, ‘earlier trade marks’ can be applications for the trade marks referred to in subparagraph (a), subject to their registration.

Therefore, the legal basis of the opposition requires the existence and validity of an earlier right within the meaning of Article 8(2) EUTMR.

In the case at hand, the relevant dates are as follows:

 The filing date of European Union trade mark application No 17 940 020 is 06/08/2018.

Thus, the filing date of any earlier right on which the present opposition is based must be prior to the 06/08/2018.

 The filing date of the opponent’s European Union trade mark registration No 17 986 441 is 16/11/2018; there is no priority claim.

The Office informed the opponent of the above deficiency in its notification dated 20/03/2019. The opponent was invited to file comments on the above deficiency within a set time limit but did not file a reply.

As the filing date of the earlier right is not earlier than the filing date of the contested trade mark, the opposition must 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

Denitza STOYANOVA - VALCHANOVA

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.