Decision
The appeal only concerns the issue of the scope of the opposition insofar as G&S in Classes 9 and 42 are concerned. In the opponents view, the actual list of the contested goods was broader and, as a result, the OD should have refused the application also for other G&S in Classes 9 and 42. The OD defined the scope of the opposition mainly on the basis of the opponents letter of 21 September 2009 (and also on those of 27 August 2008 and 23 November 2009) without taking into account that the list of G&S mentioned in the opponents letter of 21 September 2009, did not correspond to the list of the initially opposed G&S, as defined in the notice of opposition. The OD fully upheld the opposition, for all the G&S cited in the opponents letter of 21 September 2009. However, this list contains G&S in Classes 9 and 42 which were not included in the list of initially opposed G&S, as defined in the notice of opposition. It results that the contested decision, has broadened the scope of the opposition with respect to the G&S initially defined in the notice of opposition and the opponent obtained a broader result in Classes 9 and 42, than the one which it sought, in its notice of opposition. However, in the course of the appeal proceedings, the applicant has not produced any argument in this respect, nor has filed a separate appeal requesting the annulment of the contested decision on this point, which was not raised, by the opponent, in its appeal. Therefore, the contested decision has become final insofar as it upheld the opposition against these goods and the Board cannot amend the contested decision, in this respect. The opponents statement that the opposition is directed against any products in Classes 9 and 42 which are, or may potentially be, related to time or timing, is ambiguous and unacceptable, and implies that the scope of the opposed goods is not precise, nor closed since the G&S in Classes 9 and 42 which are or may be related to time or timing can be unlimited. The opponent cannot broaden the original list of opposed goods by adding new G&S in the appeal proceedings. A limitation as the one which is proposed by the opponent would affect all G&S which were not originally opposed and which must not be restricted nor modified since the opposition originally filed was not directed against them. Failing to have done so in due time, the opponent cannot extend the original scope of the opposition in the appeal proceedings by claiming the non-opposed goods are or may be similar to, or include or be included in the actual successfully opposed goods. It is not up to the Office to infer the actual intention of the opponent and decide on its behalf by adding goods which the opponent did not include within the original extent of its opposition. In any case, following a comparison of the accepted and rejected goods, the opponents claims in respect of the alleged contradictions between the lists of successful and opposed G&S cannot be sustained, since the goods are not identical, except with respect to ‘signalling apparatus and ‘apparatus for calculating, which are identical to the successfully opposed ‘Apparatus for (…) calculating, signalling, insofar as they ‘are related to time or timing, and the undue inclusion of ‘microprocessor operated data processing apparatus due to an obvious mistake. The appeal is dismissed for the remainder.
