OPPOSITION No B 2 330 713

Club Deportivo Numancia de Soria, S.A.D., Avd. Mariano Vicen, nº 16, 42003 Soria, Spain (opponent), represented by Pons Consultores de Propiedad Industrial, S.A., Glorieta Rubén Darío, 4, 28010 Madrid, Spain (professional representative)

a g a i n s t

Moet Hennessy España S.A., Sociedad Unipersonal, Calle Consell de Cent 334-336, 3º, 08009 Barcelona, Spain (applicant), represented by Alexandra Carton 9, avenue de Champagne, 51200 Epernay, France (professional representative).

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

DECISION:

1. Opposition No B 2 330 713 is rejected in its entirety.

2. The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 12 264 404 namely against all the goods and services in Classes 16, 18, 24, 25, 28 and 41. The opposition is based on four Spanish figurative trade mark registrations Nos 1984450, 1984449, 1984448, 1984447 respectively in Classes 16, 24, 25 and 41. The opponent invoked Article 8(1)(b) EUTMR.

	NUMANTHIA
Earlier trade marks	Contested sign

SUBSTANTIATION

According to Article 76(1) EUTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided 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 Rule 19(1) EUTMIR, the Office shall give the opposing party the opportunity to present 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 Rule 19(2) EUTMIR, within the period referred to above, the opposing party shall also file proof of the existence, validity and scope of protection of his earlier mark or earlier right, as well as evidence proving his entitlement to file the opposition.

In particular, if the opposition is based on a registered trade mark which is not a European Union trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Rule 19(2)(a)(ii) EUTMIR.

In the present case the evidence filed by the opponent consists of the registration certificates along with the translations.

The evidence mentioned above is not sufficient to substantiate the opponent’s earlier trade marks, because the required renewal certificates are missing.

According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR the opposing party has not proven the existence, validity and scope of protection of his earlier mark or earlier right, as well as his entitlement to file the opposition, the opposition shall be rejected as unfounded.

As the Cooling-off period has been prolonged, the period referred to above to prove the existence of the rights, was extended to the 12/06/2016. As the certificates show filing dates of 08/09/1995 and 05/03/1995, they have been expired by the end of the above mentioned period and no renewal certificates have been provided to prove their further existence.

It should be noted that the letter dated 30/06/2014 informing about the new deadlines to prove the rights, informed about this requirement and the legal consequences.

The opposition must therefore be rejected as unfounded in relation to all of the trademarks the opposition is based on.

COSTS

According to Article 85(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 Rule 94(3) and Rule 94(7)(d)(ii) 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.

The Opposition Division

Richard BIANCHI

Claudia MARTINI

Sigrid DICKMANNS

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.