Strong Words From The 2Nd Board

The OHIM Second Board of Appeal has condemned the OHIM Opposition Division’s practices regarding oppositions which are inadmissible nether r.18 CTMIR.

Cabouchon applied to register CABOUCHON every bit a CTM for goods inwards Classes 14, xviii in addition to 25. Doring opposed the application based on her High German CABOUCHON give-and-take mark, registered for Classes 14, xviii in addition to 20, registration No 396 10 653. The opposition was rejected past times the OHIM Opposition Division, which institute that although the Opposition Division had been told that the opposition was based on a give-and-take mark, Doring after submitted a registration certificate which showed a device mark, rather than a give-and-take mark. The Opposition Division thus institute that Doring had failed to substantiate its before right, in addition to therefore, the opposition based on the before correct was non well-founded. Doring appealed.

The appeal was allowed. By providing the certification in addition to registration discover of the mark, Doring had sufficiently identified the mark. However, it was the Opposition Division’s conclusion to require Doring to render proof that she had used her score that arrive for existent criticism. Said the Second Board of Appeal:

This is clearly a illustration inwards which the refund of the appeal fee is justified nether Rule 51 CTMIR. The contested conclusion was based on a set down on which the opponent was never given a risk to comment. That breach of the correct to move heard amounts to substantial procedural violation inside the important of Rule 51. H5N1 farther unsatisfactory facial expression of this illustration is that the Opposition Division was manifestly quite willing to pose the opponent to the inconvenience of submitting proof of role of the score on which the opposition was based in addition to submitting ‘further facts, testify in addition to arguments’, fifty-fifty though – on the sentiment ultimately taken past times the Opposition Division inwards the contested conclusion – zip that the opponent did or said after the death of the opposition menstruum could cause got enabled the opposition to succeed. This illustration shows that at that topographic point is a pressing ask for the Office to reconsider about of its practices. If the Office considers that an opposition is incurably impaired past times a formal defect, it should cause got a conclusion to that final result at an early on phase instead of causing the parties to waste matter their fourth dimension submitting testify in addition to legal declaration on the core of the opposition. That, after all, appears to move the philosophy underlying Rule xviii CTMIR.

, e'er the inexpensive sensationalist, was quite excited when he saw such potent words. Seriously though, the Board’s betoken seems in addition to so obvious that it’s rather worrying that the Opposition Division didn’t figure this i out for itself.