OPPOSITION No B 3 087 264

Grupo China Sale, Calle Los Doscientos 7 1A, 03007 Alicante, Spain (opponent), represented by Ana María López De San Pedro, Calle Los Doscientos 7 1A, 03007 Alicante, Spain (professional representative)

a g a i n s t

Casa da Tapada – Sociedade Agrícola S.A., Avenida Sá de Miranda nº 150, 4720 464 Fiscal – Amares, Portugal (applicant), represented by J. Pereira Da Cruz S.A., Rua Victor Cordon 14, 1249-103 Lisboa, Portugal (professional representative)

On 26/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 087 264 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 18 021 207 for the word mark ‘CT’, namely all the goods in Class 33. The opposition is based on of European Union trade mark application No 18 021 207 for the word mark ‘CT’. The opponent invoked Article 8(1)(a) and (b) EUTMR.

ADMISSIBILITY

According to Article 8(1) EUTMR, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

(a) if it is identical with the earlier trade mark and the goods or services for which registration is applied for are identical with the goods or services for which the earlier trade mark is protected;

(b) if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

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 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.

In the present case, the filing date of the contested European Union trade mark application No 18 021 207 is 08/02/2019. According to the opposition notice, filed on 26/06/2019, the filing date of the trade mark on which the opposition is based is also 08/02/2019, i.e. the same date. For an invoked right to be earlier it must have, in the absence of any priority, an application date that is prior to the day on which the contested EUTM application was filed. Consequently, the filing date of the trade mark on which the opposition is based is not earlier than that of the contested application.

The Office informed the opponent of the deficiency in its communication dated 16/07/2019 and it clearly stated in its letter that this deficiency could not be remedied since that would have been possible only before the expiry of the opposition period i.e. 02/07/2019. The Office gave the opponent a time limit until 16/09/2019 to respond to the said communication.

The opponent did not reply within the prescribed time limit.

The opposition must therefore, 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

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.