OPPOSITION No B 3 107 593

Taicang Zhigengniao Information Technology Co., Ltd., No.20 Jianxiong Road, Taicang City, People’s Republic of China (opponent), represented by Isabelle Bertaux, 55 rue Ramey, 75018, Paris, France (professional representative)

a g a i n s t

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

On 09/10/2020, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 107 593 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 18 088 117 for the word mark 'OBINSLAB' namely against all the goods in Class 9. The opposition is based on European Union trade mark application No 18 036 573 for the word mark 'Obinslab'. The opponent invoked Article 8(1)(a) and (b) EUTMR.

ADMISSIBILITY

The examination of the notice of opposition has shown that it is inadmissible because the mark on which the opposition is based is not actually an earlier right within the meaning of Article 8(2) EUTMR.

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 filing date of the contested EUTM application No 18 088 117 for the word mark 'OBINSLAB' is 27/06/2019. However, it has an accepted priority claim for United States trade mark No 88 242 985 of 27/12/2018.

The filing date of the opponent’s European Union trade mark application No 18 036 573 for the word mark 'Obinslab' is 30/04/2019 and no priority has been claimed.

Therefore, the filing date of the opponent’s European Union trade mark application No 18 036 573 for the word mark 'Obinslab', on which the opposition is based, is not in fact earlier than the priority date of the contested European Union trade mark application. Consequently, the European Union trade mark application No 18 036 573 for the word mark 'Obinslab' cannot be considered as an earlier right within the meaning of Article 8(2) EUTMR.

The Office informed the opponent of the deficiency in its notification dated 02/03/2020. The opponent was set a time limit to submit any comments on the matter. This time limit was extended with the Decision No EX-20-3 of the Executive Director of the Office of 16 March 2020 concerning the extension of time limits and the subsequent Decision No EX-20-4 of 29 April 2020 and finally expired on 18/05/2020.

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, 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

Erkki MÜNTER

Alina FRUNZA

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.