CUMULUS | Decision 2814955

Date Published: Sep 28, 2017

OPPOSITION No B 2 814 955

Heyer Medical AG, Carl-Heyer-Str. 1, 56130 Bad Ems, Germany (opponent), represented by Harms Hasskarl Melzer, Ludwigstr. 8, 80539 München, Germany (professional representative)

a g a i n s t

Legacy Ventures LLC, Suite 23, 1222 16th AVE S, Nashville TN 37212, United States of America (holder).

On 10/05/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 814 955 is rejected as inadmissible.

2.        The opposition fee will not be refunded.

REASONS:

The opponent filed an opposition against all the goods of international registration designating the European Union No 1 292 079, namely against goods in Class 10. The opposition is based on a German non-registered trade mark. The opponent invoked Article 8(4) EUTMR.

Cumulus	CUMULUS
Earlier trade mark	Contested sign

ADMISSIBILITY

According to Rule 15(2)(h)(iii) EUTMIR, where the opposition is entered by a licensee or by a person who is entitled under the relevant national law to exercise an earlier right, the notice of opposition must contain a statement to that effect and indications concerning the authorisation or entitlement to file the opposition.

In the present case, the opponent has not provided an indication as to whether he is the owner or the authorised licensee of the earlier right.

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.

The Office informed the opponent of two deficiencies in its notification dated 21/12/2016. The opponent was set a time limit until 26/02/2017 to provide a valid indication of the goods and services as well as the basis of the authorisation to file the opposition.

The opponent did not reply within the prescribed time limit as regards the second requirement. The examination of the notice of opposition showed that the opponent had filed the opposition in the capacity of a person authorised under the relevant national law. Pursuant to Rule 15(2)(h)(iii) EUTMIR, it must also specify the basis of the authorisation to file this opposition (e.g. licence agreement, specific authorisation from the proprietor, specific provision of national law, etc.).

As this deficiency was not remedied, 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

Benoit VLEMINCQ

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.