OPPOSITION No B 3 080 076

Krzysztof Drabikowski, Szosa baranowicka 106, 15-509 Sobolewo, Poland (opponent), represented by Ewa Winarska, M.C. Skłodowskiej 3 lok. 16c, 15-095 Białystok, Poland (professional representative)

a g a i n s t

Bartłomiej Krysiuk, Ul.Ks.Jana Twardowskiego 78, 15-170 Białystok, Poland (applicant), represented by Marcin Barański, ul. Śniadeckich 15/10, 60-773 Poznań, Poland (professional representative).

On 16/01/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 080 076 is rejected as inadmissible.

2. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against all the goods and services of European Union trade mark application No 18 027 101 for the word mark ‘BATUSHKA’, namely against all the goods and services in Classes 9, 25 and 41. The opposition is based on the non-registered trade mark ‘BATUSHKA’ claimed in the EU and in Poland. The opponent invoked Article 8(3) 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.

In the present case, the commercial activities on which the opposition is based are not indicated in a clear and unambiguous way. The notice of opposition contains an indication that the opposition is based on class numbers 9, 25 and 41 and in the submissions attached to the notice of opposition reference is made to ‘category 35 in Nice Classification’.

However, the mere reference to Classes of the Nice Classification is not a clear indication of goods and services on which the opposition is based as required by Article 2(g) EUTMDR.

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.

On 08/07/2019 the Office informed the opponent of the deficiency and invited him to remedy it by 13/09/2019. The opponent did not reply, therefore the deficiency was not remedied.

Consequently, the present opposition must be rejected as inadmissible.

For the sake of completeness, the Opposition Division notes that non-registered trade marks are not harmonised at EU level and these rights are completely governed by national laws. Consequently, an EU non-registered trade mark as such does not exist and it is only at Member State level that such rights can form a valid basis for opposition under these grounds. Consequently, such a right is not an eligible basis for opposition under Article 8(3) EUTMR.

Finally, to the extent that the opponent refers in the submissions attached to the notice of opposition to the infringement of personal rights, suffice it to note that these cannot be invoked under Article 8(3) EUTMR.

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

Denitza STOYANOVA- VALCHANOVA

Stanislava STOYANOVA

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.