OPPOSITION No B 2 791 310

Commercial Service SAS, 150 Rue De Gaulle, 83480 Puget Sur Argens, France (opponent), represented by Commercial Service SAS, Grégory Lanuc, 150 Rue De Gaulle, 83480 Puget Sur Argens, France (employee representative)

a g a i n s t

Molino Polverini Di Giuseppe Polverini (Individual Company), Via Mercatale, 7, 60037 Monte San Vito (AN), Italy (applicant), represented by Enrico La Malfa, Via Santo Stefano 58, 40125 Bologna, Italy (professional representative).

On 25/08/2017, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 791 310 is rejected in its entirety as inadmissible.

2. The opposition fee will not be refunded.

REASONS:

The opponent filed an opposition against all the goods in Class 30 of European Union trade mark application No 15 912 314 . The opposition is based on the European trade mark application No 15 845 341 ‘PASTA PRO’ and the French trade mark registration No 3 449 370 . The opponent invoked Article 8(3) EUTMR.

ADMISSIBILITY

According to Rule 17(4) EUTMIR, if the notice of opposition does not comply with the provisions of Rule 15 EUTMIR (other than those referred to in paragraphs 1, 2 and 3 of Rule 17 EUTMIR), the Office will inform the opponent accordingly and invite him to remedy the deficiencies noted within a period of two months. If the deficiencies are not remedied before this time limit expires, the Office will reject the opposition as inadmissible.

In its notification dated 26/01/2017, the Office informed the opponent of the following deficiencies:

Relative admissibility deficiencies in relation to the French earlier trade mark registration No 3 449 370

According to Rule 15(2)(f) EUTMIR, the notice of opposition must indicate the goods and services on which the opposition is based.

The opponent, together with the notice of opposition, submitted a copy, in French, of an extract from the French Trade Mark Office database https://bases-marques.inpi.fr (Institute National de la Propriété Industrielle) dated 20/09/2016 which includes the particulars of the earlier trade mark No 3 449 370 on which the opposition is, inter alia, based. However, there is no indication of the goods and services on which the opposition is, inter alia, based in relation to the earlier trade mark No 3 449 370.

Moreover, the goods included in the certificate have been indicated in French, which is a language other than the language of the opposition proceedings. According to Article 119(5) and (6) EUTMR, this information has to be provided in the language of the opposition proceedings, namely English.

For the sake of completeness and in relation with this mark, the Office informed the opponent about two other deficiencies, namely that:

According to Rule 15(2)(e) EUTMIR, the notice of opposition must contain a representation of the earlier mark as registered or applied for; if the earlier mark is in colour, the representation must be in colour.

According to Rule 15(2)(d) EUTMIR, the notice of opposition must contain the filing date and, where available, the registration date and the priority date of the earlier mark, unless it is an unregistered well-known trade mark.

However, it has to be noted that the opponent neither file a representation in colour of the earlier mark nor did it indicate the dates of such earlier mark.

Relative admissibility deficiency in relation to earlier European trade mark application No 15 845 341

According to Rule 15(2)(f) EUTMIR, the notice of opposition must indicate the goods and services on which the opposition is based.

In the present case, the goods of the earlier European trade mark application No 15 845 341 on which the opposition is, inter alia, based are not indicated in a clear and unambiguous way. The notice of opposition contains an indication that the opposition is based on part of the goods however it lists all the goods in Class 30 for which the application has been applied for.

Moreover, the goods included in the notice of opposition on which the opposition is presumably based have been indicated in French, which is a language other than the language of the opposition proceedings. According to Article 119(5) and (6) EUTMR, this information has to be provided in the language of the opposition proceedings, namely English.

The opponent was set a time limit of two months, until 26/03/2017, to remedy those deficiencies in relation to French earlier mark No 3 449 370 and earlier European application No 15 845 341. However, the opponent did not reply within the prescribed time limit. The opposition must therefore, be rejected as inadmissible.

Please note that the opposition fee will not be refunded. In accordance with Rule 18(5) EUTMIR, the Office only refunds the opposition fee in view of a withdrawal and/or restriction of the trade mark during the cooling-off period.

The Opposition Division

José Antonio GARRIDO OTAOLA

Carmen SANCHEZ PALOMARES

Ioana MOISESCU

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.