OPPOSITION No B 2 499 195

García Ballester, S.L., Cami d'Onda nº 35, 12.530, Burriana (Castellón), Spain, and Disa Corporación Petrolífera, S.A., Álvaro Rodríguez López, s/n, 38005 Santa Cruz de Tenerife (Tenerife), Spain (opponents), represented by J. Lopez Patentes y Marcas, S.L., C/. San Vicente, nº 83-3º-17, 46007, Valencia, Spain (professional representative)

a g a i n s t

Colruyt Group Services NV, Edingensesteenweg 196, 1500 Halle, Belgium (applicant), represented by Gevers, Brussels Airport Business Park, Holidaystraat 5, 1831 Diegem, Belgium (professional representative).

On 03/10/2018, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 499 195 is rejected in its entirety.

2. The opponents bear the costs, fixed at EUR 300.

REASONS

The opponents filed an opposition against some of the goods and services of European Union trade mark application No 13 533 104, namely against some of the services in Class 35. The opposition is based on European Union trade mark registrations No 290 544 and No 6 586 754. The opponent invoked Article 8(1)(b) EUTMR.

EUTM No 290 544 

EUTM No 6 586 754
Earlier trade marks	Contested sign

SUBSTANTIATION

According to Article 76 (1) EUTMR (in the version in force at the time of commencement of the adversarial part, now 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 Rule 19(1) EUTMIR (in the version in force at the time of commencement of the adversarial part), 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 Rule 19(2) EUTMIR (in the version in force at the time of commencement of the adversarial part), 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. (emphasis added)

In the present case, the opposition was filed by two opponents.

However, the right to file an opposition jointly with other opponents (either natural or legal persons) applies only in cases where the opponents have a certain relationship, namely:

• if they are co-owners of the earlier right(s) on which the opposition is based, or

• if the opposition is filed by the owner or co-owner of an earlier mark or right together with one or more licensees of these earlier marks/rights.

The notice of opposition does not indicate the relationship of the opponents (co-ownership or owner/licensee), nor does it appoint only one opponent from among those listed.

From the information included in the EUTM register, it is clear that the first opponent, namely Garcia Ballester, S.L., is the owner of the earlier EUTM No 290 544, while the second opponent, namely Disa Corporación Petrolifera, S.A., is the owner of the earlier EUTM No 6 586 754. They have neither been co-owners of the earlier marks at the time of filing of the opposition and no licenses have been registered. Furthermore, the opponents did not submit any evidence as to prove that there is a licence (contractual) relationship between them regarding the rights on which the opposition is based.

Taking into account the above, the first opponent did not prove to be entitled to file the opposition on the basis of the EUTM No 6 586 754 and the second opponent did not prove to be entitled to file the opposition on the basis of the EUTM No 290 544.

According to Rule 20(1) EUTMIR (in the version in force at the time of commencement of the adversarial part), if until expiry of the period referred to in Rule 19(1) EUTMIR (in the version in force at the time of commencement of the adversarial part), the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, the opposition will be rejected as unfounded.

The opposition must therefore be rejected as unfounded.

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 opponents are the losing party, they 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 (former Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, in force before 01/10/2017), 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

Carmen SÁNCHEZ PALOMARES

Zuzanna STOJKOWICZ

Ana MUÑIZ RODRÍGUEZ

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.