VERSION FACTORY | Decision 2813056 - TECNOLOGIAS DIGITALES AUDIOVISUALES, S.L v. Digital Media Centre B.V.
Date Published: Sep 28, 2017
OPPOSITION No B 2 813 056
Tecnologías Digitales Audiovisuales, S.L., Linaje, 2, 29001 Málaga, Spain (opponent), represented by Segura & Maclean S.L., Calle Linaje, 2 - 3º Izquierda, 29001 Málaga, Spain (professional representative)
a g a i n s t
Digital Media Centre B.V., Piet Heinkade 55, 1019 GM Amsterdam, The Netherlands (applicant), represented by Algemeen Octrooi- En Merkenbureau B.V., John F. Kennedylaan 2, 5612 AB Eindhoven, The Netherlands (professional representative).
On 24/05/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 813 056 is rejected as inadmissible.
2. The opposition fee will not be refunded.
REASONS:
The opponent filed an opposition against all the goods and services in Classes 9, 38, 41 and 42 of European Union trade mark application No 15 688 286 ‘VERSION FACTORY’. The opposition is based on the non-registered trade mark ‘VERSION FACTORY’ used in the course of trade in Spain. The opponent invoked Article 8(4) EUTMR.
ADMISSIBILITY
According to Rule 15(2)(f) EUTMIR, the notice of opposition must indicate the goods and services on which the opposition is based.
According to Rule 17(3) EUTMIR, where the opponent submits an incomplete translation, the part of the notice of opposition that has not been translated will not be taken into account in the examination of admissibility.
In the present case the goods and services on which the opposition is based have been indicated in the notice of opposition in a language other than the language of the opposition proceedings. According to Article 119(5) and (6) EUTMR, this information has to be provided in the language of the opposition proceedings, namely English.
Furthermore, in its observations filed together with the notice of opposition, the opponent refers – in English - to ‘technological sector’, ‘activities within the technological, audio-visual and telecommunications sector’, ‘technological field’ and ‘computer products and services’. However, this cannot be considered as a clear and unambiguous indication of the commercial activities on which the opposition in based.
According to Rule 17(4) EUTMIR, if the notice of opposition does not comply with the provisions of Rule 15 EUTMIR (other than those referred to in paragraphs 1, 2 and 3 of Rule 17 EUTMIR), the Office will inform the opponent accordingly and invite him to remedy the deficiencies noted within a period of two months. If the deficiencies are not remedied before this time limit expires, the Office will reject the opposition as inadmissible.
The Office informed the opponent of the deficiency in its notification dated 21/12/2016. The opponent was set a time limit of two months, until 26/02/2017, to remedy the deficiency namely, to provide a translation in English of the goods and services on which the opposition is based.
However, the opponent did not reply within the prescribed time limit; therefore it did not remedy the abovementioned deficiency.
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
Zuzanna STOJKOWICZ | Carmen SÁNCHEZ PALOMARES | Elisa ZAERA CUADRADO |
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.