OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET

(TRADE MARKS AND DESIGNS)


Opposition Division



OPPOSITION No B 2 485 103


Cristal Roc, CD 52 Bis Ardenay Sur Merize, 72370 Le Breil Sur Merize, France (opponent), represented by Novagraaf France, Bâtiment O2 - 2, rue Sarah Bernhardt

CS 90017, 92665 Asnières-sur–Seine, France (professional representative).


a g a i n s t


Zbyszko Bojanowicz Spółka z Ograniczoną Odpowiedzialnością Spółka Komandytowo–Akcyjna, Kościelna 85 A, 26-500 Białobrzegi, Poland (applicant), represented by Brandpat Patent and Trademark Attorneys Chlebicka Czyz Galazkiewicz Ziolkowski Professional Partnership, Hoza 29/31, Apt. 31, 00-521 Warszawa, Poland (professional representative).


On 02/11/2015, the Opposition Division takes the following



DECISION:


1. Opposition No B 2 485 103 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 Community trade mark application No 13 258 306 namely against all the goods in Class 32. The opposition is based on French trade mark registration No 1 514 811. The opponent invoked Article 8(1)(b) CTMR.




ROC




Earlier trade mark


Contested sign



SUBSTANTIATION


According to Article 76(1) CTMR, 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) CTMIR, 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) CTMIR, 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 Community 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) CTMIR.


In the present case the notice of opposition was not accompanied by any evidence as regards the earlier trade mark on which the opposition is based.


On 03/06/2015 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 08/10/2015.


The opponent did not submit any evidence concerning the existence, validity and scope of protection of the earlier trade mark.


According to Rule 20(1) CTMIR, if until expiry of the period referred to in Rule 19(1) CTMIR 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.


The opposition must therefore be rejected as unfounded.



COSTS


According to Article 85(1) CTMR, 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 (7)(d)(ii) CTMIR, 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


Begoña URIARTE VALIENTE

Pedro JURADO MONTEJANO

Francesca CANGERI SERRANO



According to Article 59 CTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. 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 800 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) CTMIR, 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 (Article 2(30) CTMFR) has been paid.


Latest News

  • FEDERAL CIRCUIT AFFIRMS TTAB DECISION ON REFUSAL
    May 28, 2021

    For the purpose of packaging of finished coils of cable and wire, Reelex Packaging Solutions, Inc. (“Reelex”) filed for the registration of its box designs under International Class 9 at the United States Patent and Trademark Office (“USPTO”).

  • THE FOURTH CIRCUIT DISMISSES NIKE’S APPEAL OVER INJUNCTION
    May 27, 2021

    Fleet Feet Inc, through franchises, company-owned retail stores, and online stores, sells running and fitness merchandise, and has 182 stores, including franchises, nationwide in the US.

  • UNO & UNA | DECISION 2661950
    May 22, 2021

    Marks And Spencer Plc, Waterside House, 35 North Wharf Road, London W2 1NW, United Kingdom, (opponent), represented by Boult Wade Tennant, Verulam Gardens, 70 Grays Inn Road, London WC1X 8BT, United Kingdom (professional representative)