DATAVERSE | Decision 2844283
Date Published: Sep 25, 2017
OPPOSITION No B 2 844 283
Infoline Computer Handels GmbH, Zugspitzstr. 15 b, 82131 Stockdorf, Germany (opponent), represented by Infoline Computer Handels GmbH, Daniel Takriti, Zugspitzstr. 15 b, 82131 Stockdorf, Germany (employee representative)
a g a i n s t
Lavastorm Analytics Inc. 321 Summer Street, Boston Massachusetts 02210 United States of America (applicant), represented by STOBBS Endurance House, Vision Park Chivers Way Cambridge CB24 9ZR United Kingdom (professional representative).
On 28/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 844 283 is rejected as inadmissible.
2. The opposition fee will not be refunded.
REASONS:
The opponent filed an opposition against all the goods and services of European Union trade mark application No 15 926 892, the word mark ‘DATAVERSE’ applied on 14/10/2016 for goods and services in Classes 9 and 42.
The opposition is based on European Union trade mark application No 15 926 892, the word mark ‘DATAVERSE’ applied on 14/10/2016 for goods and services in Classes 9 and 42.
The opponent invoked Article 8(1)(b) EUTMR.
ADMISSIBILITY
According to Article 8(2)(a) EUTMR, earlier trade marks within the meaning of Article 8(1) EUTMR are those trade marks with a date of application for registration which are earlier than the date of application for registration of the European Union trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks.
According to Article 41(1) EUTMR, within a period of three months following the publication of an EU trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 EUTMR.
The opponent filed a notice of opposition against European Union trade mark application No 15 926 892 filed on 14/10/2016 and identified the earlier mark on which the opposition was based on as European Union trade mark application No 15 926 892 filed on 14/10/2016.
Based on this information, as the opponent cited no other rights in support of its opposition, the right on which the opposition is based is not earlier within the meaning of Article 8(2) EUTMR.
The Office informed the opponent of the deficiency on 15/03/2017 and invited it to submit any comments on the matter by 20/04/2017.
The opponent in reply admitted to have made an error by putting the wrong number in the opposition notice. The opponent clarified that it intended to base the opposition on European Union trade mark registration No 9 921 354, the word mark ‘datavest’, and the opposition was intended to be based on services in Class 42 only.
The Office responded by clarifying that the incorrect indication of the earlier right in the notice of Opposition is an absolute deficiency which cannot be remedied once the opposition period has expired.
The opponent in reply argued that indicating the number of the contested mark as the earlier mark is a form error and not an absolute deficiency error; it is not listed as such either in the Office’s Guidelines or in the EUTMR.
However, the Opposition Division cannot accept the opponent’s arguments. According to Rule 17(2) EUTMIR ‘If the notice of opposition has not been filed within the opposition period, or if the notice of opposition does not clearly identify the application against which opposition is entered or the earlier mark or the earlier right on which the opposition is based in accordance with Rule 15(2)(a) and (b), or does not contain grounds for opposition in accordance with Rule 15(2)(c), and if those deficiencies have not been remedied before the expiry of the opposition period, the Office shall reject the opposition as inadmissible.’
These are absolute admissibility requirements which cannot be remedied after the expiry of the opposition period. The deficiencies listed in Rule 17(2) EUTMIR are absolute deficiencies which the Office does not invite the opponent to remedy, unlike other requirements in Rule 15 EUTMIR where such a possibility is provided in Rule 17(4) EUTMIR.
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
Marianna KONDAS |
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.