DECISION

of the Second Board of Appeal

of 20 August 2019

In case R 360/2019-2

Beehealthy Natural Products sp. z o.o.
ul. Wisniowa 13 32-765 Rzezawa Poland	Applicant / Appellant

represented by Regionalna Agencja Patentowa, ul. W. Pola 12/112, 32‑020, Wieliczka, Poland

v

Medical Fomento Industrial, S.L.
Calle La Paz, 27 1004 Vitoria (Alava) Spain	Opponent / Defendant

represented by Maria Alicia Izquierdo Blanco, General Salazar, 10, 48012 Bilbao, Spain

APPEAL relating to Opposition Proceedings No B 2 993 155 (European Union trade mark application No 16 687 402)

The Second Board of Appeal

composed of H. Salmi as a single Member having regard to Article 165(2) and (5) EUTMR, Article 36 EUTMDR and Article 7 of the Decision of the Presidium on the organisation of the Boards of Appeal as currently in force

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 9 May 2017, the predecessor in title to Beehealthy Natural Products sp. z o.o. (‘the applicant’) sought to register the word mark

medo

for goods and services in Classes 10, 16 and 35.

2. The application was published on 1 September 2017.

3. On 15 November 2017, Medical Fomento Industrial, S.L. (‘the opponent’) filed an opposition against the registration of the published trade mark application for all the goods and services.

4. By decision of 12 December 2018 (‘the contested decision’) - sent to the applicant on 13 December 2018 by registered post - the Opposition Division partially accepted the opposition and rejected the trade mark application for all the goods in Class 10 and various Class 35 services. The trade mark applied for could proceed for the Class 16 goods and the remaining Class 35 services. Each party was ordered to bear its own costs.

5. On 12 February 2019, the Office received a notice of appeal from the applicant against the contested decision.

6. On 9 April 2019, the Office received the payment of the appeal fee.

7. The statement of grounds of the appeal was received on 11 April 2019.

8. By letter dated 30 April 2019, the Registry of the Boards of Appeal informed the applicant by courier service that the appeal fee had been received on 9 April 2019, i.e. after the end of the appeal period which expired on 25 February 2019. The applicant was invited to provide evidence that it had effected, within the appeal period, payment through a banking establishment or had given an order to transfer the amount of payment to a banking establishment within the appeal period. In addition, the applicant was informed that if the payment had been effected within the last 10 days of the appeal period, a surcharge should be paid of 10%, i.e. EUR 72. A time-limit of one month was given to do so.

9. The applicant did not file any observations.

10. By letter dated 2 July 2019, the Registry of the Boards of Appeal informed the applicant by courier service that no response to the payment deficiency letter had been received and that the Board would take a decision on the admissibility of the appeal.

Reasons

11. Article 68(1) EUTMR provides that the notice of appeal must be filed in writing before the Office within two months from the notification date of the decision. Furthermore, it determines that the notice shall be deemed to have been filed only when the appeal fee has been paid within that period.

12. Article 23(3) EUTMDR provides that if the appeal fee has not been paid or has been paid after the expiry of the period for filing the appeal, pursuant to Article 68(1) EUTMR, the appeal shall be deemed not to have been filed.

13. The applicant is considered to be notified of the contested decision on 23 December 2018. In accordance with the final sentence of Article 68(1) EUTMR in conjunction with Article 67 EUTMDR, the time limit for paying the appeal fee expired on 25 February 2019.

14. The appeal fee was paid on 9 April 2019 and was, therefore, received late.

15. Since the applicant failed to pay the appeal fee in due time and failed to provide evidence that within the appeal period payment was effected through a banking establishment or that an order to transfer the amount of the payment was given to a banking establishment, the appeal is deemed not to have been filed.

Costs

16. The appeal fee has to be reimbursed in accordance with Article 33(a) EUTMDR.

17. Furthermore, since the appeal is deemed not to have been filed, there are no ‘appeal proceedings’ within the meaning of Article 109(1) EUTMR. Article 109 EUTMR does not apply and no award of costs shall be made against the appellant.

18. However, the apportionment of costs made in the contested decision – each party bears its own costs - remains unchanged.

Order

On those grounds,

THE BOARD

hereby:

1. Declares that the appeal is deemed not to have been filed;

2. Orders the reimbursement of the appeal fee.

Signed H. Salmi

Registrar: Signed p.o. P. Nafz