INEW UNIFIED MOBILE SOLUTIONS | Decision 2322249 - Shenzhen Chuangxingqi Communication Co. v. I-New Unified Mobile Solutions AG

Date Published: Oct 1, 2017

OPPOSITION No B 2 322 249

Shenzhen Chuangxingqi Communication Co., Room 07-08B, Floor 19, block A, Electronic Science and Technology Mansion, No. 2070, Shennan middle Rd, Huaqiangbei street, Futian District, Shenzhen, People’s Republic of China (opponent), represented by Cabinet Armengaud Ainé, 16 rue Gaillon, 75002 Paris, France (professional representative)

a g a i n s t

I-New Unified Mobile Solutions AG, Am Anger 1, 7210 Mattersburg, Austria (applicant), represented by Dorda Rechtsanwälte GmbH, Universitätsring 10, 1010 Vienna, Austria (professional representative).

On 07/04/2017, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 322 249 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against some of the goods and services of European Union trade mark application No 12 341 889, namely against all the goods in Class 9. The opposition is based on European Union trade mark registration No 12 048 799. The opponent invoked Article 8(1)(b) EUTMR.

Earlier trade mark	Contested sign

SUBSTANTIATION

According to Article 76(1) EUTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be 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 shall 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 shall 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.

By decision of the Cancellation Division in invalidity proceedings No 11698 C, the earlier European Union trade mark registration No 12 048 799 was rejected in its entirety. This decision is final.

Since European Union trade mark registration No 12 048 799 has been rejected by the Office, in the absence of a valid earlier right, the present opposition has to be rejected in accordance with Articles 8(2) and 41 EUTMR.

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

Lynn BURTCHAELL

Swetlana BRAUN

Julia SCHRADER

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 shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.