Opposition Division

OPPOSITION No B 2 543 562

Rico Gado Nutrição S.A., Zona Industrial Horta Das Figueiras, Nº 1, 7000-171 Évora

Portugal (opponent), represented by Gastão Da Cunha Ferreira, Lda., Rua dos Bacalhoeiros, nº. 4, 1100-070 Lisbon, Portugal (professional representative)

a g a i n s t

Elmubas Iberica, S.L., C/ Gerratxiki, 6, Azpeitia, 20730 Guipuzcoa, Spain (applicant), represented by J. Isern Patentes y Marcas, Paseo de la Castellana,
115 - 1º Dcha., 28046 Madrid, Spain
(professional representative).

On 22/12/2015, the Opposition Division takes the following


1. Opposition No B 2 543 562 is rejected in its entirety.

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


The opponent filed an opposition against all the goods of Community trade mark application No 13 770 524, namely against all the goods in Class 31. The opposition is based on Portuguese trade mark registration No 317 375. The opponent invoked Article 8(1)(a) and (b) CTMR.


Earlier trade mark

Contested sign


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 evidence filed by the opponent consists of a registration certificate.

The evidence mentioned above is not sufficient to substantiate the opponent’s earlier trade mark, because there is no renewal certificate.

On 03/12/2015 the opponent submitted observations claiming that the certificate of the earlier Portuguese trade mark registration No 317 375, filed together with the notice of opposition, contains no information on the renewal certificate and that the opponent should have been notified that further information was needed. However, according to the certificate submitted by the opponent together with the notice of opposition, the earlier mark was filed on 24/05/1996 and registered on 11/03/1997. There is no further information concerning the renewal of the earlier mark. The opponent should have submitted a document from an official source showing the missing information.

On 08/07/2015 the opponent was given two months, commencing after the ending of the cooling-off period, 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. This time limit expired on 13/11/2015.

The opponent did not submit any evidence concerning proving that its earlier trade mark has been renewed.

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.


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

Eamonn KELLY

Justyna GBYL


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.

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