OPPOSITION No B 3 131 627

Lyonnaise D'Ethnopharma-Lydeha, SARL, 2 Bis Rue Tête D'Or, 69006 Lyon, France (opponent)

a g a i n s t

Ιωαννης Κουρικος Α.Β.Ε.Ε., Βιομηχανικη Περιοχη Σινδου Οικ. Τετρ. 39^Α, 57022 Θεσσαλονικη, Greece (applicant).

On 19/05/2021, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 131 627 is rejected as inadmissible.

2. The opposition fee will not be refunded.

REASONS

The opponent filed an opposition against some of the goods of European Union trade mark application No 18 303 806 (figurative mark), namely against all the goods in Class 5. The opposition is based on European Union trade mark application No 18 303 806 (figurative mark). 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 trademark 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 trademark and the identity or similarity of the goods or services covered by the trademarks 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 trademarks 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 trademarks. According to point (b) of the same Article, ‘earlier trade marks’ can be applications for the trademarks referred to in point (a), subject to their registration.

In the present case the filing date of the contested European Union trade mark application No 18 303 806 is 08/09/2020. The filing date of the trade mark on which the opposition is based, namely European Union trade mark application No 18 303 806, is also 08/09/2020, i.e. the same date. No priorities have been claimed for the concerned trade marks.

In fact the Office has noted that the mark invoked as the basis of the opposition coincides with the contested trade mark application, namely European Union trade mark application No 18 303 806 with the application date of 08/09/2020.

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 or where appropriate, prior to the claimed priority in respect of the contested EUTM application.

The Office informed the opponent of the deficiency in its notification dated 21/01/2021. The opponent was set a time limit of two months, until 26/03/2021, to submit any comments on the matter. The opponent did not reply within the prescribed time limit.

Consequently, European Union trade mark application No 18 303 806 on which the opposition is based is not earlier within the meaning of Article 8(2) EUTMR and the opposition must 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

Renata COTTRELL

Dzintra BRAMBATE

María de las Nieves CANTÓ SOLER

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.