OPPOSITION No B 3 092 409

Corus Sourcing Limited, 27 Hillier Street Fufai Commercial Center 702, Hong Kong, Hong Kong Special Administrative Region of the People’s Republic of China (opponent), represented by André Guerreiro Rodrigues, Rua do Farol, 394, 3º Dto, Bairro do Rosário, 2750-341 Cascais, Portugal (professional representative)

a g a i n s t

Taicang Zhigengniao Information Technology Co., Ltd., No.20 Jianxiong Road, Kejiaoxincheng, Taicang, People's Republic of China (applicant), represented by A.BRE.MAR. S.R.L., Via Servais, 27, 10146 Torino, Italy (professional representative).

On 10/02/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 092 409 is rejected as inadmissible.

2. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against all the goods in Class 9 of European Union trade mark application No 18 032 811 for the word mark ‘annepro’. The opposition is based on the non-registered trade mark ‘Obislab Anne Pro’ used in the course of trade in the European Union. The opponent invoked Article 8(4) EUTMR.

ADMISSIBILITY

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 EUTMR :

[…]

(c) by the proprietors of earlier marks or signs referred to in Article 8(4) and by persons authorised under the relevant national law to exercise these rights;

[…].

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:

iv) where the opposition is based on an earlier right within the meaning of Article 8(4) EUTMR, an indication of its kind or nature, a representation of the earlier right, and an indication of whether this earlier right exists in the whole Union or in one or more Member States, and if so, an indication of the Member States.

According to Article 5(3) EUTMDR, if the notice of opposition does not comply 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.

On 20/08/2019, the opponent filed the notice of opposition against the contested application.

The opponent invoked under the grounds of Article 8(4) EUTMR an EU non-registered trade mark ‘Obislab Anne Pro’.

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(4) EUTMR.

The Opposition Division deems it necessary to point out that in case the opponent´s intention was to invoke the non-registered trade mark in one or more of the EU Member States, it should have specified the Member States where the earlier right exists (an absolute admissibility requirement provided for in Article 2(2)(b)(iv) EUTMDR under Article 8(4) EUTMR). However, the opponent failed to indicate the Member State(s) where the right is claimed to exist.

Consequently, the opposition based on the non-registered EU trade mark is to 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

Denitza STOYANOVA - VALCHANOVA

Reet ESCRIBANO

Raphaël MICHE

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.