OFFICE FOR HARMONIZATION IN THE INTERNAL MARKET
(TRADE MARKS AND DESIGNS)
OPPOSITION No B 2 547 928
Biovéd 2005 Kft., Pinkamindszent 140/23 hrsz., 9922, Hungary (opponent), represented by Sbg & k Ügyvédi Iroda, Andrássy út 113, Budapest,.1062, Hungary (professional representative)
a g a i n s t
Kwizda Agro Hungary Kereskedelmi Kft., Váci út 135-139. A. ép. 5. Em, 1138, Budapest, Hungary (applicant), represented by Gödölle Kékes Mészáros & Szabó Szabadalmi Es Védjegy Iroda, Keleti Károly u. 13/b 1024 Budapest, Hungary (professional representative).
2. The opponent bears the costs, fixed at EUR 300.
opponent filed an opposition against all the goods of Community trade
mark application No
The condition requiring use in the course of trade is a fundamental requirement, without which the sign in question cannot enjoy any protection against the registration of a Community trade mark, irrespective of the requirements to be met under national law in order to acquire exclusive rights.
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 the present case, the opponent claimed an earlier non-registered trade mark as the basis of its opposition but the notice of opposition was not accompanied by any evidence of use of the earlier sign in the course of trade.
On 29/07/2015 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 10/12/2015.
The opponent did not submit any evidence of use in the course of trade of the earlier sign on which the opposition is based.
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
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.