NUTRAKOS | Decision 2608399
Date Published: Sep 28, 2017
OPPOSITION No B 2 608 399
Cruzeiro Exim S.R.L., Alexandriei, 145A, 077025 Bragadiru, Romania (opponent)
a g a i n s t
Professional Dietetics S.p.A., Via Ciro Menotti, 1/A, 20129 Milano, Italy (holder), represented by Buzzi, Notaro & Antonielli d'Oulx, Via Maria Vittoria, 18, 10123 Torino, Italy (professional representative).
On 04/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 608 399 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 1 270 943, namely against all the goods in Classes 3 and 5. The opposition is based on Romanian trade mark application No 3 642. The opponent invoked Article 8(1)(b) EUTMR.
NUTRAKOS | |
Earlier trade mark | Contested sign |
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 is 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)(a) EUTMR, 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 by the proprietors of earlier trade marks referred to in Article 8(2) EUTMR, in respect of Article 8(1) and (5) EUTMR.
In the present case, the filing date of the contested international registration designating the European Union, taking into account the priority based on Italian trade mark application No TO2015C000725, is 13/03/2015.
The notice of opposition, deemed to have been filed on 30/04/2016, contained only one national mark as basis of the opposition, namely Romanian trade mark application No 3 642, filed on 28/05/2015. This date is clearly after the valid filing date of the contested sign and, therefore, the mark on which the opposition is based is not an earlier right within the meaning of Article 8(2) EUTMR.
The Office informed the opponent of this deficiency in its notification dated 06/12/2016, setting a time limit of two months, until 11/02/2017, 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
Marta GARCÍA COLLADO |
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.