VYBER | Decision 2894908
Date Published: Sep 24, 2017
OPPOSITION No B 2 894 908
Yvolve Sports Ltd., 24/26 City Quay, Dublin, Ireland (opponent), represented by Bobbert & Partner Patentanwälte PartmbB, Postfach 1252, 85422 Erding, Germany (professional representative)
a g a i n s t
Rubro B.V., Industrieweg 9, 7641 AT Wierden, The Netherlands (applicant), represented by Inaday, Hengelosestraat 141, 7521 AA Enschede, The Netherlands (professional representative).
On 23/08/2017, the Opposition Division takes the following
DECISION:
1. Opposition No B 2 894 908 is rejected as inadmissible.
2. The opposition fee will not be refunded.
REASONS:
The opponent filed an opposition against all the goods of European Union trade mark application No 16 302 135 of the word mark ‘VYBER’, namely against all the goods in Class 12. The opposition is based on European Union trade mark registration No 16 051 377 of the word mark ‘VYBE’. The opponent invoked Article 8(1)(b) EUTMR.
ADMISSIBILITY
According to Article 41(1) EUTMR, the notice of opposition must be filed within a period of three months following the publication of the EUTM application. The contested application was published on 14/02/2017. Therefore, the time limit for the opponent to file its opposition expired on 14/05/2017.
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 by the proprietors of earlier trade marks referred to in Article 8(2) EUTMR.
According to Article 8(2)(a) EUTMR, ‘earlier trade marks’ means trade marks with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks.
Therefore, an opposition must be based on an earlier mark within the meaning of Article 8(2) EUTMR.
On 12/05/2017, the opponent filed a notice of opposition against the contested EUTM
application. The filing date of the contested European Union trade mark application No 16 302 135 is 31/01/2017. Nonetheless, this right enjoys the priority date of 01/08/2016, corresponding to the Benelux priority application No 1 337 017.
According to Article 29 EUTMR, a person who has duly filed an application for a trade mark in or in respect of any State party to the Paris Convention or to the Agreement establishing the World Trade Organisation, or his successors in title, shall enjoy, for the purpose of filing an EU trade mark application for the same trade mark in respect of goods or services which are identical with or contained within those for which the application has been filed, a right of priority during a period of six months from the date of filing of the first application.
According to Article 31 EUTMR the right of priority shall have the effect that the date of priority shall count as the date of filing of the EU trade mark application for the purposes of establishing which rights take precedence.
The date of application of European Union trade mark registration No 16 051 377 claimed by the opponent as the basis of the opposition is 17/11/2016.
Therefore, the opposition is not based on an earlier mark within the meaning of Article 8(2) EUTMR.
This deficiency was not remedied before the expiry of the opposition period.
According to Rule 17(5) EUTMIR, any decision to reject an opposition as inadmissible under paragraphs 2, 3 and 4 shall be notified to the applicant.
The Office, therefore, informed the opponent of this deficiency in its notification dated 19/05/2017. The opponent was set a time limit of two months, until 19/07/2017, to submit any comments on the matter to the Office. The opponent did not reply within the prescribed time limit.
Consequently, in accordance with Rule 17(2) EUTMIR, the opposition must be rejected as inadmissible.
COSTS
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
Denitza STOYANOVA-VALCHANOVA | Adriana VAN ROODEN | Boyana NAYDENOVA |
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.