SOLIDCP | Decision 2857731
Date Published: Sep 25, 2017
OPPOSITION No B 2 857 731
Paul Adams, SolidCP Limited Prospect House Fishing Line Road, Redditch B97 6EW, the United Kingdom (opponent)
a g a i n s t
Wbrm LLC, 2001 E.Lohman STE 110-144, Las Cruces New Mexico 88001, the United States of America (applicant), represented by Freeman Harris Solicitors, 6 Sutton Street, London E1 0BB, the United Kingdom (professional representative).
On 27/07/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 857 731 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 15 834 328, ‘SOLIDCP’ (word mark), namely against all the goods and services in Classes 9, 35 and 42. The opposition is based on European Union trade mark application No 15 834 328, ‘SOLIDCP’ (word mark), for goods and services in Classes 9, 35 and 42, which is actually the opposed application. The opponent invoked Article 8(1)(a) 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.
iii) where the opposition is based on an earlier right within the meaning of Article 8(4) EUTMR, an indication of its kind or nature, a representation of the earlier right, and an indication of whether this earlier right exists in the whole Union or in one or more Member States, and if so, an indication of the Member States.
According to Rule 17(2) EUTMIR, if the notice of opposition does not clearly identify the earlier mark or the earlier right 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 03/03/2017, the opponent filed notice of opposition against the contested application No 15 834 328. However, the opponent failed to indicate the earlier right on which the opposition is based.
In the notice of opposition, the opponent claimed as the basis of the opposition the European Union trade mark application No 15 834 328 ‘SOLIDCP’ against which it submitted the opposition at hand. The opponent invoked Article 8(1)(a) as ground of the opposition.
It should be mentioned that the opponent stated the following as explanation of the grounds of the opposition:
‘The SolidCP Logo has been in use by our company under domain www.solidcp.com since 5th January 2016 when SolidCP commenced business and as such we would raise objection to the trademark "SolidCP" being used by another company that we feel it has no right to register this as it would impose upon our own business.
SolidCP Ltd is now a registered limited company in the UK where we will be submitting an application for our logo to become a registered trademark.
Once our objection has been considered we would wish to make an application for an EU registered trademark as well.
It should be noted that we already hold a trademark registration for SolidCP in the Netherlands.’
The Office informed the opponent of the deficiencies in its notification dated 27/03/2017. The opponent was set a time limit of two months, until 08/06/2017, to submit any comments on the matter.
The opponent did not reply within the prescribed time limit.
Consequently, it is considered that the ‘earlier right’ indicated by the opponent in its observations of 03/03/2017 is inadmissible as a basis of the present opposition.
For the sake of completeness, it should be mentioned that the opponent did not invoke any other article, as for example Article 8(4), under which it could claim non-registered mark SolidCP.
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
Francesca DRAGOSTIN |
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.
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