OPPOSITION No B 3 047 136

Krüger GmbH & Co. KG, Senefelderstr. 44, 51469, Bergisch Gladbach, Germany (opponent), represented by Kutzenberger Wolff & Partner, Waidmarkt 11, 50676 Köln, Germany (professional representative)

a g a i n s t

Francis Busuttil and Sons Limited, 1 Misrah, St. Venera, Malta (applicant), represented by Ganado Advocates, 171 Old Bakery Street, VLT 1455 Valletta, Malta (professional representative).

On 26/03/2019, the Opposition Division takes the following

DECISION:

1. Opposition No B 3 047 136 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 of European Union trade mark application No 17 335 316 ‘Kwik Mix’, namely against all the goods in Classes 29, 30 and 32. The opposition is based on German trade mark registration No 30 466 029 ‘Quickmix’ and European trade mark registration No 5 840 591 .The opponent invoked Article 8(1)(b), EUTMR.

PROOF OF USE

In accordance with Article 47(2) and (3) EUTMR, if the applicant so requests, the opponent must furnish proof that, during the five-year period preceding the date of filing or, where applicable, the date of priority of the contested trade mark, the earlier trade mark has been put to genuine use in the territories in which it is protected in connection with the goods or services for which it is registered and which the opponent cites as justification for its opposition, or that there are proper reasons for non-use. The earlier mark is subject to the use obligation if, at that date, it has been registered for at least five years.

The same provision states that, in the absence of such proof, the opposition will be rejected.

The applicant requested that the opponent submit proof of use of the trade marks on which the opposition is based, namely German trade mark registration No 30 466 029 and European trade mark registration No 5 840 591.

The request was filed in due time and is admissible as the earlier trade marks were registered more than five years prior to the relevant date mentioned above.

On 19/09/2018, the opponent was given two months to file the requested proof of use. This time limit expired, after extension, on 19/01/2019.

The opponent did not submit any evidence concerning the use of the earlier trade marks on which the opposition is based. It did not argue that there were proper reasons for non-use either.

According to Article 10(2) EUTMDR, if the opposing party does not provide such proof before the time limit expires, the Office will reject the opposition.

Therefore, the opposition must be rejected pursuant to Article 47(2) and (3) EUTMR and Article 10(2) EUTMDR.

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

Martina GALLE

Trinidad NAVARRO CONTRERAS

María José LÓPEZ BASSETS

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.