HELA | Decision 2839580
Date Published: Sep 25, 2017
OPPOSITION No B 2 839 580
Hügli Food Élelmiszeripari Kft., Budapest, Váci Street 152-156, 1138, Hungary (opponent), represented by Dóra Klinger, Budapest, Ady Endre Street 19/A, 1024, Hungary (professional representative)
a g a i n s t
Hela Gewürzwerk Hermann Laue GmbH, Beimoorweg 11, 22926 Ahrensburg, Germany (applicant), represented by Raffay & Fleck, Grosse Bleichen 8, 20354 Hamburg, Germany (professional representative).
On 25/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 839 580 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 15 901 391, namely against all the goods in Classes 1, 2, 4, 29 and 30. The opposition is based on Hungarian trade mark registration No 215 042 for goods in Class 29. The opponent invoked Article 8(1)(b) EUTMR.
HELLA | HELA |
Earlier trade mark | Contested sign |
SUBSTANTIATION
According to Article 76(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 provided 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 Rule 19(1) EUTMIR, the Office will give the opposing party the opportunity to present 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 Rule 19(2) EUTMIR, within the period referred to above, the opposing party must also file proof 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 which is not a European Union trade mark, the opposing party must provide 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 paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered — Rule 19(2)(a)(ii) EUTMIR.
In the present case, the opposition filed on 30/01/2017 was in the name of ‘Hügli Food Élelmiszeripari Kft.’.
On 09/02/2017 the opponent was given two months, commencing after the ending of the cooling-off period, to submit further material for the substantiation of its earlier right; this period expired on 14/06/2017 (the substantiation period).
On 01/02/2017, within the time limit, the opponent submitted a registration certificate from the Hungarian Intellectual Property Office along with its translation into English, according to which the owner of the Hungarian trade mark registration on which the opposition is based, is Hügli Food Kft. Thus, the name is not the same as the one contained in the notice of opposition.
During the period of substantiation which ended on the 14/06/2017, the opponent did not submit any further evidence, for example of a transfer or a change of name. Consequently, the opponent did not submit any evidence nor did it provide any explanation regarding the discrepancy between the owners.
From the above, the Opposition Division considers that the evidence submitted by the opponent does not provide sufficient information regarding the entitlement of the opponent to file the opposition.
According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR the opposing party has not proven the existence, validity and scope of protection of its earlier mark or earlier right, as well as its entitlement to file the opposition, the opposition will be rejected as unfounded.
The opposition must therefore be rejected as unfounded.
COSTS
According to Article 85(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 Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, 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
Chantal VAN RIEL | Klaudia MISZTAL | Lucinda CARNEY |
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.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.