OPPOSITION Nо B 3 095 330

 

Ride For Life KB, Box 2015 Hovås Alle 10, 436 53 Hovås, Sweden (opponent) 

 

a g a i n s t

 

Rynkeby Foods A/S, Vestergade 30, 5750 Ringe, Denmark (applicant), represented by Heinrich Prinz Reuss, Ludwig-Eckes-Platz 1, 55268 Nieder-Olm, Germany (employee representative).

On 08/04/2021, the Opposition Division takes the following

 

 

DECISION:

 

 

1.	Opposition No B 3 095 330 is rejected in its entirety.

 

2.	The opponent bears the costs.

 

REASONS

 

On 23/09/2019, the opponent filed an opposition against all the goods and services of European Union trade mark application No 18 124 014 (figurative mark), namely against all the goods and services in Classes 25, 32, 36 and 41. The opposition is based on well-known trade mark in Greece and Sweden ‘Ride For Life’. The opponent invoked  Article 8(1)(a) and (b) EUTMR.

 

SUBSTANTIATION – Earlier well-known trade mark in Greece and Sweden under Article 8(2)(c) EUTMR

 According to Article 95(1) EUTMR, in proceedings before it the Office will examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office is restricted in this examination to the facts, evidence and arguments submitted by the parties and the relief sought.

 

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

 

According to Article 7(1) EUTMDR, the Office will give the opposing party the opportunity to submit the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.

 

According to Article 7(2) EUTMDR, within the period referred to above, the opposing party must also file evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as evidence proving its entitlement to file the opposition.

 

In particular, if the opposition is based on a well-known mark within the meaning of Article 8(2)(c) EUTMR, the opposing party must submit evidence showing that this mark is well known in the relevant territory for the goods and services on which the opposition is based — Article 7(2)(b) EUTMDR.

 

An earlier well-known mark is a trade mark that is well known in a Member State, in the sense in which the words ‘well known’ are used in Article 6bis of the Paris Convention. Such a mark may be non-registered, but it may also be registered.

The opponent needs to demonstrate that it is the owner of an earlier trade mark that has become well known in the relevant territory, for the goods and services on which the opposition is based. In order to substantiate its mark it will have to submit evidence of the mark being well known.

Article 8(2)(c) EUTMR, in general, defines the earlier trade marks only ‘for the purposes of paragraph 1’ and, therefore, does not provide an independent relative ground for refusal. Therefore, the grounds for refusal and opposition are those provided by Article 8(1) EUTMR.

In order for Article 8(2)(c) EUTMR in conjunction with Article 8(1) EUTMR to be applicable, the following has to be established:

 the earlier marks were well-known in the relevant territory on the date when the contested EUTM application was filed

and, in conjunction with Article 8(1)(a) EUTMR:

 there is an identity between the contested mark and the earlier well-known marks, and an identity of the goods or services covered by the trade marks,

or in conjunction with Article 8(1)(b) EUTMR:

 there is an identity or similarity between the contested mark and the earlier well-known marks, and an identity or similarity of the goods or services covered by the trade marks, and there exists a likelihood of confusion on the part of the public in the relevant territory.

These conditions are cumulative. Therefore, where a mark does not satisfy one of these conditions, the opposition based on the well-known trade marks under Article 8(1)(a) and (b) EUTMR in conjunction with Article 8(2)(c) EUTMR cannot succeed.

In the present case, the notice of opposition was accompanied by three jpg. files showing the logotype Ride For Life.

On 27/03/2020, the opponent submitted the registration certificate from the Swedish authorities to show the ownership of the earlier right. However, no evidence as regards of the earlier trade mark on which the opposition is based being well-known in Greece and Sweden was submitted to the Office. The opponent did not submit any evidence concerning the validity and scope of protection of the earlier trade mark in Greece and Sweden.

 

Therefore, the Office finds the submitted evidence clearly insufficient to substantiate the earlier right.

On 10/08/2020, the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. This time limit expired on 20/12/2020.

 

The opponent did not submit any further evidence concerning the substantiation of the earlier trade mark. Moreover, the opponent did not make reference to evidence accessible online from a source recognised by the Office.

 

According to Article 8(1) EUTMDR, if until expiry of the period referred to in Article 7(1) EUTMDR, the opposing party has not submitted any evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, or where the evidence submitted is manifestly irrelevant or manifestly insufficient, the opposition will be rejected as unfounded.

 

The opposition must therefore be rejected as unfounded, as far as it is based on this well-known trade mark.

COSTS

 

According to Article 109(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

 

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

 

According to Article 109(7) EUTMR and Article 18(1)(c)(i) EUTMIR, the costs to be paid to the applicant are the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and therefore did not incur representation costs.

 

 

 

The Opposition Division

 

 

Monika CISZEWSKA

Reet ESCRIBANO

Maria José LOPEZ BASSETS

 

 

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.