OPPOSITION No B 2 907 908

Yaffa Limited, Unit 1, Baxter Road, S6 1JF Sheffield, United Kingdom (opponent), represented by Agile IP LLP, Airport House, Purley Way, CR0 0XZ Croydon, United Kingdom (professional representative)

a g a i n s t

Emirates Delights Marketing Co, Itha'a Street, Om Al Sharayet, Whaidy Building, 5th Floor, Ramallah, The West Bank, Palestine, Israel (applicant), represented by Praxi Intellectual Property SPA, Piazza Brà, 28, 37121 Verona, Italy (professional representative).

On 20/11/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 2 907 908 is rejected in its entirety.

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

REASONS

The opponent filed an opposition against all the goods in Classes 29, 30 and 31 of European Union trade mark application No 16 522 203 for the figurative mark . The opposition is based on United Kingdom trade mark registration No 3 063 471 for the word mark ‘Palestinian Delights’. The opponent invoked Article 8(1)(b) EUTMR.

SUBSTANTIATION

According to 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 Article 7(1) EUTMDR, 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 Article 7(2) EUTMDR, 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.

In particular, if the opposition is based on a registered trade mark that is not a European Union trade mark, the opposing party must submit 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 Article 7(1) EUTMDR and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Article 7(2)(a)(ii) EUTMDR. Where the evidence concerning the registration of the trade mark is accessible online from a source recognised by the Office, the opposing party may provide such evidence by making reference to that source — Article 7(3) EUTMDR.

On 08/06/2017, the opponent filed a notice of opposition claiming as the basis of the opposition United Kingdom trade mark registration No 3 063 471 for the word mark ‘Palestinian Delights’.

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 11/07/2017, the opponent was given two months, commencing after the ending of the cooling-off period, to submit the abovementioned material. After the extension of the cooling-off period, this time limit expired on 16/09/2019.

The opponent did not submit any evidence concerning the substantiation of the earlier trade mark. Moreover, the opponent did not make reference to evidence accessible online from a source recognised by the Office.

According to Article 8(1) EUTMDR, if until expiry of the period referred to in Article 7(1) EUTMDR, the opposing party has not submitted any evidence of the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, or where the evidence submitted is manifestly irrelevant or manifestly insufficient, 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 opponent is the losing party, it 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

Denitza STOYANOVA – VALCHANOVA

Reet ESCRIBANO

Hanne THOMSEN

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.