KEEP FIGHTING | Decision 2836545 - Jamal Errachidi v. Michael Schumacher
Date Published: Sep 28, 2017
OPPOSITION No B 2 836 545
Jamal Errachidi, 9 rue des Galeries, 95000 Cergy, France (opponent), represented by Stéphanie Cohen, 24 rue Marbeuf, 75008 Paris, France (professional representative)
a g a i n s t
Michael Schumacher, 24, Boulevard Princesse Charlotte, 98000 Est-Quest, Monte Carlo, Monaco (applicant), represented by Kohler Schmid Möbus Patentanwälte Partnerschaftsgesellschaft mbB, Gropiusplatz 10, 70563 Stuttgart, Germany (professional representative).
On 24/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 836 545 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 15 870 173 for the word mark ‘KEEP FIGHTING’, namely the goods and services in Classes 25, 41, 44 and 45. The opposition is based on the trade mark registration ‘KEEPING FIGHT KEEPING FIGHT WEAR’. The opponent invoked Articles 8(1)(a) and 8(1)(b) EUTMR.
ADMISSIBILITY
According to Rule 15(2)(b) EUTMIR, the notice of opposition must contain a clear identification of the earlier mark or earlier right on which the opposition is based, namely:
i) where the opposition is based on an earlier mark within the meaning of Article 8(2)(a) or (b) EUTMR or where the opposition is based on Article 8(3) EUTMR, the indication of the file number or registration number of the earlier mark, the indication whether the earlier mark is registered or an application for registration, as well as the indication of the Member States including, where applicable, the Benelux, in or for which the earlier mark is protected, or, if applicable, the indication that it is a European Union trade mark.
According to Rule 17(2) EUTMIR, if the notice of opposition does not clearly identify the earlier mark on which the opposition is based in accordance with Rule 15(2)(b) EUTMIR, and if the deficiency has not been remedied before the expiry of the opposition period, the Office will reject the opposition as inadmissible.
On 24/01/2017, the opponent filed notice of opposition against the contested application. However, the opponent failed to indicate the file number or registration number of the earlier mark, and the Member State, including Benelux, where the earlier mark is registered/applied for or, if applicable, the indication that it is an EUTM.
Indeed, in the notice of opposition under the heading ‘Basis of the opposition #1 – Trade mark’ the opponent gave identification elements in relation to the contested trade mark application (trade mark number, territory, trade mark name and application date) instead of identification elements in relation to the earlier trade mark. Under the heading ‘Explanation of grounds and other remarks’ in the notice of opposition the opponent gave incomplete indications of the earlier mark. However, it failed to indicate the file number or registration number of the earlier mark and the territory where the earlier mark is registered or applied for. Such indications are not given in the opponent’s observations or additional documents submitted along with the notice of opposition either. The missing elements are absolute identification elements for earlier trade mark registrations and applications.
The Office informed the opponent of the deficiencies in its notification dated 06/03/2017. The opponent was set a time limit of two months, until 11/05/2017, to submit any comments on the matter. The opponent did not reply within the prescribed time limit.
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
Begoña URIARTE VALIENTE | Boyana NAYDENOVA | Frédérique SULPICE |
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.