D'AGOSTINI ORGANIZZAZIONE S.r.L.
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D'AGOSTINI ORGANIZZAZIONE SL
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This is an easy to use European TMark Information.
For exact data information you have to refer to the Official Pubblications as
original sources.
Community Trade Mark Regulation
(EEC Council Regulation No. 40/94 of 20.12.1993 )
Go to TM-Regualtion- Implementing of 13 December 1995
TITLE I
GENERAL PROVISIONS
Article 1 - Community trade mark
1. A trade mark for goods or services which is registered in accordance with
the conditions contained in this Regulation and in the manner herein provided
is hereinafter referred to as a 'Community trade mark'.
2. A Community trade mark shall have a unitary character. It shall have equal
effect throughout the Community: it shall not be registered, transferred or surrendered
or be the subject of a decision revoking the rights of the proprietor or
declaring it invalid, nor shall its use be prohibited, save in respect of the
whole Community. This principle shall apply unless otherwise provided in this
Regulation.
Article 2 - Office
An Office for Harmonization in the Internal Market (trade marks and designs),
hereinafter referred to as 'the Office', is hereby established.
Article 3 - Capacity to act
For the purpose of implementing this Regulation, companies or firms and other
legal bodies shall be regarded as legal persons if, under the terms of the law
governing them, they have the capacity in their own name to have rights and
obligations of all kinds, to make contracts or accomplish other legal acts and
to sue and be sued.
TITLE II
THE LAW RELATING TO TRADE MARKS
SECTION 1
DEFINITION OF A COMMUNITY TRADE MARK OBTAINING A COMMUNITY TRADE MARK
Article 4 - Signs of which a Community trade mark may consist
A Community trade mark may consist of any signs capable of being represented
graphically, particularly words, including personal names, designs, letters,
numerals, the shape of goods or of their packaging, provided that such signs
are capable of distinguishing the goods or services of one undertaking from
those of other undertakings.
Article 5 - Persons who can be proprietors of Community Trade marks
1. The following natural or legal persons, including authorities established
under public law, may be proprietors of Community trademarks:
(a) nationals of the Member States; or
(b) nationals of other States which are parties to the Paris Convention for the
protection of industrial property, hereinafter referred to as 'the Paris
Convention'; or
(c) nationals of States which are not parties to the Paris Convention who are
domiciled or have their seat or who have real and effective industrial or
commercial establishments within the territory of the Community or of a State
which is party to the Paris Convention; or
(d) nationals, other than those referred to under subparagraph (c), of any
State which is not party to the Paris Convention and which, according to
published findings, accords to nationals of all the Member States the same
protection for trade marks as it accords to its own nationals and, if nationals
of the Member States are required to prove registration in the country of
origin, recognizes the registration of Community trade marks as such proof.
2. With respect to the application of paragraph 1, stateless persons as defined
by Article 1 of the Convention relating to the Status of Stateless Persons
signed at New York on 28 September 1954, and refugees as defined by Article 1
of the Convention relating to the Status of Refugees signed at Geneva on 28
July 1951 and modified by the Protocol relating to the Status of Refugees
signed at New York on 31 January 1967, shall be regarded as nationals of the
country in which they have their habitual residence.
3. Persons who are nationals of a State covered by paragraph 1 (d) must prove
that the trade mark for which an application for a Community trade mark has
been submitted is registered in the State of origin, unless, according to
published findings, the trade marks of nationals of the Member States are
registered in the State of origin in question without proof of prior
registration as a Community trade mark or as a national trade mark in a Member
State.
Article 6 - Means whereby a Community trade mark is obtained
A Community trade mark shall be obtained by registration.
Article 7 - Absolute grounds for refusal
1. The following shall not be registered:
(a) signs which do not conform to the requirements of Article 4;
(b) trade marks which are devoid of any distinctive character;
(c) trade marks which consist exclusively of signs or indications which may
serve, in trade, to designate the kind, quality, quantity, intended purpose,
value, geographical origin or the time of production of the goods or of
rendering of the service, or other characteristics of the goods or service;
(d) trade marks which consist exclusively of signs or indications which have
become customary in the current language or in the bona fide and established
practices of the trade;
(e) signs which consist exclusively of:
(i) the shape which results from the nature of the goods themselves; or
(ii) the shape of goods which is necessary to obtain a technical result; or
(iii)the shape which gives substantial value to the goods;
(f) trade marks which are contrary to public policy or to accepted principles
of morality;
(g) trade marks which are of such a nature as to deceive the public, for
instance as to the nature, quality or geographical origin of the goods or
service;
(h) trade marks which have not been authorised by the competent authorities and
are to be refused pursuant to Article 6ter of the Paris Convention:
(i) trade marks which include badges, emblems or escutcheons other than those
covered by Article 6ter of the Paris Convention and which are of particular
public interest, unless the consent of the appropriate authorities to their registration
has been given.
2. Paragraph 1 shall apply notwithstanding that the grounds of
non-registrability obtain in only part of the Community.
3. Paragraph 1(b), (c) and (d) shall not apply if the trade mark has become
distinctive in relation to the goods or services for which registration is
requested in consequence of the use which has been made of it.
Article 8 - Relative grounds for refusal
1. Upon opposition by the proprietor of an earlier trade mark, the trade mark
applied for shall not be registered:
(a) if it is identical with the earlier trade mark and the goods or services
for which registration is applied for are identical with the goods or services
for which the earlier trade mark is protected;
(b) if because of its identity with or similarity to the earlier trade mark and
the identity or similarity of the goods or services covered by the trade marks
there exists a likelihood of confusion on the part of the public in the
territory in which the earlier trade mark is protected; the likelihood of
confusion includes the likelihood of association with the earlier trade mark.
2. For the purposes of paragraph 1, 'Earlier trademarks' means:
(a) trade marks of the following kinds 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:
(i) Community trade marks;
(ii) trade marks registered in a Member State, or, in the case of Belgium, the
Netherlands or Luxembourg, at the Benelux Trade Mark Office;
(iii) trade marks registered under international arrangements which have effect
in a Member State;
(b) applications for the trade marks referred to in subparagraph (a), subject
to their registration;
(c) trade marks which, on the date of application for registration of the
Community trade mark, or, where appropriate, of the priority claimed in respect
of the application for registration of the Community trade mark, are well known
in a Member State, in the sense in which the words 'well known' are used in
Article 6 bis of the Paris Convention.
3. Upon opposition by the proprietor of the trade mark, a trade mark shall not
be registered where an agent or representative of the proprietor of the trade
mark applies for registration thereof in his own name without the proprietor's
consent, unless the agent or representative justifies his action.
4. Upon opposition by the proprietor of a non-registered trade mark or of
another sign used in the course of trade of more than mere local significance,
the trade mark applied for shall not be registered where and to the extent
that, pursuant to the law of the Member State governing that sign,
(a) rights to that sign were acquired prior to the date of application for
registration of the Community trade mark, or the date of the priority claimed
for the application for registration of the Community trade mark;
(b) that sign confers on its proprietor the right to prohibit the use of a
subsequent trade mark.
5. Furthermore, upon opposition by the proprietor of an earlier trade mark
within the meaning of paragraph 2, the trade mark applied for shall not be
registered where it is identical with or similar to the earlier trade mark and
is to be registered for goods or services which are not similar to those for
which the earlier trade mark is registered, where in the case of an earlier
Community trade mark the trade mark has a reputation in the Community and, in
the case of an earlier national trade mark, the trade mark has a reputation in
the Member State concerned and where the use without due cause of the trade
mark applied for would take unfair advantage of, or be detrimental to, the
distinctive character or the repute of the
earlier trade mark.
SECTION 2
EFFECTS OF COMMUNITY TRADE MARKS
Article 9 - Rights conferred by a Community trade mark
1. A Community trade mark shall confer on the proprietor exclusive rights
therein. The proprietor shall be entitled to prevent all third parties not
having his consent from using in the course of trade:
(a) any sign which is identical with the Community trade mark in relation to
goods or services which are identical with those for which the Community trade
mark is registered;
(b) any sign where, because of its identity with or similarity to the Community
trade mark and the identity or similarity of the goods or services covered by
the Community trade mark and the sign, there exists a likelihood of confusion
on the part of the public; the likelihood of confusion includes the likelihood
of association between the sign and the trade mark;
(c) any sign which is identical with or similar to the Community trade mark in
relation to goods or services which are not similar to those for which the
Community trade mark is registered, where the latter has a reputation in the
Community and where use of that sign without due cause takes unfair advantage
of, or is detrimental to, the distinctive character or the repute of the
Community trade mark.
2 The following, inter alia, may be prohibited under paragraph 1:
(a) affixing the sign to the goods or to the packaging thereof;
(b) offering the goods, putting them on the market or stocking them for these
purposes under that sign, or offering or supplying services thereunder;
(c) importing or exporting the goods under that sign;
(d) using the sign on business papers and in advertising.
3. The rights conferred by a Community trade mark shall prevail against third
parties from the date of publication of registration of the trade mark.
Reasonable compensation may, however, be claimed in respect of matters arising
after the date of publication of a Community trade mark application, which
matters would, after publication of the registration of the trade mark, be
prohibited by virtue of that publication. The court seized of the case may not
decide upon the merits of the case until the registration has been published.
Article 10 - Reproduction of Community trade marks in dictionaries
If the reproduction of a Community trade mark in a dictionary, encyclopaedia or
similar reference work gives the impression that it constitutes the generic
name of the goods or services for which the trade mark is registered, the
publisher of the work shall, at the request of the proprietor of the Community
trade mark, ensure that the reproduction of
the trade mark at the latest in the next edition of the publication is
accompanied by an indication that it is a registered trade mark.
Article 11 - Prohibition on the use of a Community trade mark registered in the
name of an agent or representative
Where a Community trade mark is registered in the name of the agent or
representative of a person who is the proprietor of that trade mark, without
the proprietor's authorization, the latter shall be entitled to oppose the use
of his mark by his agent or representative if he has not authorised such use,
unless the agent or representative justifies his action.
Article 12 - Limitation of the effects of a Community trade mark
A Community trade mark shall not entitle the proprietor to prohibit a third
party from using in the course of trade:
(a) his own name or address;
(b) indications concerning the kind, quality, quantity, intended purpose,
value, geographical origin, the time of production of the goods or of rendering
of the service, or other characteristics of the goods or service;
(c) the trade mark where it is necessary to indicate the intended purpose of a
product or service, in particular as accessories or spare parts, provided he
uses them in accordance with honest practices in industrial or commercial
matters.
Article 13 - Exhaustion of the rights conferred by a Community trade mark
1. A Community trade mark shall not entitle the proprietor to prohibit its use
in relation to goods which have been put on the market in the Community under
that trade mark by the proprietor or with his consent.
2. Paragraph 1 shall not apply where there exist legitimate reasons for the
proprietor to oppose further commercialization of the goods, especially where
the condition of the goods is changed or impaired after they have been put on
the market.
Article 14 - Complementary application of national law relating to infringement
1. The effects of Community trade marks shall be governed solely by the
provisions of this Regulation. In other respects, infringement of a Community
trade mark shall be governed by the national law relating to infringement of a
national trade mark in accordance with the provisions of Title X.
2 This Regulation shall not prevent actions concerning a Community trade mark
being brought under the law of Member States relating in particular to civil
liability and unfair competition.
3. The rules of procedure to be applied shall be determined in accordance with
the provisions of Title X.
SECTION 3
USE OF COMMUNITY TRADE MARKS
Article 15 - Use of Community trade marks
1. If, within a period of five years following registration, the proprietor has
not put the Community trade mark to genuine use in the Community in connection
with the goods or services in respect of which it is registered, or if such use
has been suspended during an uninterrupted period of five years, the Community
trade mark shall be subject to the sanctions provided for in this Regulation,
unless there are proper reasons for non-use.
2 The following shall also constitute use within the meaning of paragraph 1:
(a) use of the Community trade mark in a form differing in elements which do
not alter the distinctive character of the mark in the form in which it was
registered;
(b) affixing of the Community trade mark to goods or to the packaging thereof
in the Community solely for export purposes.
3. Use of the Community trade mark with the consent of the proprietor shall be
deemed to constitute use by the proprietor.
SECTION 4
COMMUNITY TRADE MARKS AS OBJECTS OF PROPERTY
Article 16 - Dealing with Community trade marks as national trade marks
1. Unless Articles 17 to 24 provide otherwise, a Community trade mark as an
object of property shall be dealt with in its entirety, and for the whole area
of the Community, as a national trade mark registered in the Member State in
which, according to the Register of Community trade marks,
(a) the proprietor has his seat or his domicile on the relevant date; or (b)
where subparagraph (a) does not apply, the proprietor has an establishment on
the relevant date.
2. In cases which are not provided for by paragraph 1, the Member State
referred to in that paragraph shall be the Member State in which the seat of
the Office is situated.
3. If two or more persons are mentioned in the Register of Community trade
marks as joint proprietors, paragraph 1 shall apply to the joint proprietor
first mentioned; failing this, it shall apply to the subsequent joint
proprietors in the order in which they are mentioned. Where paragraph 1 does
not apply to any of the joint proprietors, paragraph2shallapply.
Article 17 - Transfer
1. A Community trade mark may be transferred, separately from any transfer of
the undertaking, in respect of some or all of the goods or services for which
it is registered.
2. A transfer of the whole of the undertaking shall include the transfer of the
Community trade mark except where, in accordance with the law governing the
transfer, there is agreement to the contrary or circumstances clearly dictate
otherwise. This provision shall apply to the contractual obligation to transfer
the undertaking.
3. Without prejudice to paragraph 2, an assignment of the Community trade mark
shall be made in writing and shall require the signature of the parties to the
contract, except when it is a result of a judgment; otherwise it shall be void.
4. Where it is clear from the transfer documents that because of the transfer
the Community trade mark is likely to mislead the public concerning the nature,
quality or geographical origin of the goods or services in respect of which it
is registered, the Office shall not register the transfer unless the successor
agrees to limit registration of the Community trade mark to goods or services
in respect of which it is not likely to mislead.
5. On request of one of the parties a transfer shall be entered in the Register
and published.
6. As long as the transfer has not been entered in the Register, the successor
in title may not invoke the rights an sing from the registration of the
Community trade mark.
7. Where there are time limits to be observed vis-à-vis the Office, the
successor in title may make the corresponding statements to the Office once the
request for registration of the transfer has been received by the Office.
8. All documents which require notification to the proprietor of the Community
trade mark in accordance with Article 77 shall be addressed to the person
registered as proprietor.
Article 18 - Transfer of a trade mark registered in the name of an agent
Where a Community trade mark is registered in the name of the agent or
representative of a person who is the proprietor of that trade mark, without
the proprietor's authorization, the latter shall be entitled to demand the
assignment in his favour of the said registration, unless such agent or
representative justifies his action.
Article 19 - Rights in rem
1. A Community trade mark may, independently of the undertaking, be given as
security or be the subject of rights in rem.
2. On request of one of the parties, rights mentioned in paragraph 1 shall be
entered in the Register and published.
Article 20 - Levy of execution
1. A Community trade mark may be levied in execution.
2. As regards the procedure for levy of execution in respect of a Community
trade mark, the courts and authorities of the Member States determined in
accordance with Article 16 shall have exclusive jurisdiction.
3. On request of one the parties, levy of execution shall be entered in the
Register and published.
Article 21 - Bankruptcy or like proceedings
1. Until such time as common rules for the Member States in this field enter
into force, the only Member State in which a Community trade mark may be
involved in bankruptcy or like proceedings shall be that in which such
proceedings are first brought within the meaning of national law or of
conventions applicable in this field.
2. Where a Community trade mark is involved in bankruptcy or like proceedings,
on request of the competent national authority an entry to this effect shall be
made in the Register and published.
Article 22 - Licensing
1. A Community trade mark may be licensed for some or all of the goods or
services for which it is registered and for the whole or part of the Community.
A licence may be exclusive or non-exclusive.
2. The proprietor of a Community trade mark may invoke the rights conferred by
that trade mark against a licensee who contravenes any provision in his
licensing contract with regard to its duration, the form covered by the registration
in which the trade mark may be used, the scope of the goods or services for
which the licence is granted, the territory in which the trade mark may be
affixed, or the quality of the goods manufactured or of the services provided
by the
licensee.
3. Without prejudice to the provisions of the licensing contract, the licensee
may bring proceedings for infringement of a Community trade mark only if its
proprietor consents thereto. However, the holder of an exclusive licence may
bring such proceedings if the proprietor of the trade mark, after formal
notice, does not himself bring infringement proceedings within an appropriate
period.
4. A licensee shall, for the purpose of obtaining compensation for damage
suffered by him, be entitled to intervene in infringement proceedings brought
by the proprietor of the Community trade mark.
5. On request of one of the parties the grant or transfer of a licence in
respect of a Community trade mark shall be enteredin the Register and
published.
Article 23 - Effects vis-à-vis third parties
1. Legal acts referred to in Article 17, 19 and 22 concerning a Community trade
mark shall only have effects vis-à-vis third parties in all the Member States
after entry in the Register. Nevertheless, such an act, before it is so entered,
shall have effect vis-à-vis third parties who have acquired rights in the trade
mark after the date of that act but who knew of the act at the date on which
the rights were acquired.
2. Paragraph 1 shall not apply in the case of a person who acquires the
Community trade mark or a right concerning the Community trade mark by way of
transfer of the whole of the undertaking or by any other universal succession.
3. The effects vis-à-vis third parties of the legal acts referred to in Article
20 shall be governed by the law of the Member State determined in accordance
with Article 16.
4. Until such time as common rules for the Member States in the field of
bankruptcy enter into force, the effects vis-à-vis third parties of bankruptcy
or like proceedings shall be governed by the law of the Member State in which
such proceedings are first brought within the meaning of national law or of
conventions applicable in this field.
Article 24 - The application for a Community trade mark as an object of
property
Articles 16 to 23 shall apply to applications for Community trade marks.
TITLE III
APPLICATION FOR COMMUNITY TRADE MARKS
SECTION 1
FILING OF APPLICATIONS AND THE CONDITIONS WHICH GOVERN THEM
Article 25 - Filing of applications
1. An application for a Community trade mark shall be filed, at the choice of
the applicant,
(a) at the Office; or (b) at the central industrial property office of a Member
State or at the Benelux Trade Mark Office. An application filed in this way
shall have the same effect as if it had been filed on the same date at the
Office.
2. Where the application is filed at the central industrial property office of
a Member State or at the Benelux Trade Mark Office, that office shall take all
steps to forward the application to the Office within two weeks after filing.
It may charge the applicant a fee which shall not exceed the administrative
costs of receiving and forwarding the application.
3. Applications referred to in paragraph 2 which reach the Office more than one
month after filing shall be deemed withdrawn.
4. Ten years after the entry into force of this Regulation, the Commission
shall draw up a report on the operation of the system of filing applications
for Community trade marks, together with any proposals for modifying this
system.
Article 26 - Conditions with which applications must comply
1. An application for a Community trade mark shall contain.
(a) a request for the registration of a Community trade mark;
(b) information identifying the applicant;
(c) a list of the goods or services in respect of which the registration is
requested;
(d) a representation of the trade mark.
2. The application for a Community trade mark shall be subject to the payment
of the application fee and, when appropriate, of one or more class fees.
3. An application for a Community trade mark must comply with the conditions
laid down in the implementing Regulation referred to in Article 140.
Article 27 - Date of filing
The date of filing of a Community trade mark application shall be the date on
which documents containing the information specified in Article 26 (1) are
filed with the Office by the applicant or, if the application has been filed
with the central office of a Member State or with the Benelux Trade Mark
Office, with that office, subject to payment of the application fee within a
period of one month of filing the abovementioned documents.
Article 28 - Classification
Goods and services in respect of which Community trade marks are applied for
shall be classified in conformity with the system of classification specified
in the Implementing Regulation.
SECTION 2
PRIORITY
Article 29 - Right of priority
1. A person who has duly filed an application for a trade mark in or for any
State party to the Paris Convention, or his successors in title, shall enjoy,
for the purpose of filing a Community 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.
2. Every filing that is equivalent to a regular national filing under the
national law of the State where it was made or under bilateral or multilateral
agreements shall be recognised as giving rise to a right of priority.
3. By a regular national filing is meant any filing that is sufficient to
establish the date on which the application was filed, whatever may be the
outcome of the application.
4. A subsequent application for a trade mark which was the subject of a
previous first application in respect of the same goods or services, and which
is filed in or in respect of the same State shall be considered as the first
application for the purposes of determining priority, provided that, at the
date of filing of the subsequent application, the previous application has been
withdrawn, abandoned or refused, without being open to public inspection and
without leaving any rights outstanding, and has not served as a basis for claiming
a right of priority. The previous application may not thereafter serve as a
basis for claiming a right of priority.
5. If the first filing has been made in a State which is not a party to the
Paris Convention, paragraphs 1 to 4 shall apply only in so far as that State,
according to published findings, grants, on the basis of a first filing made at
the Office and subject to conditions equivalent to those laid down in this
Regulation, a right of priority having equivalent effect.
Article 30 - Claiming priority
An applicant desiring to take advantage of the priority of a previous
application shall file a declaration of priority and a copy of the previous
application. If the language of the latter is not one of the languages of the
Office, the applicant shall file a translation of the previous application in
one of those languages.
Article 31 - Effect of priority right
The right of priority shall have the effect that the date of priority shall
count as the date of filing of the Community trade mark application for the
purposes of establishing which rights take precedence.
Article 32 - Equivalence of Community filing with national filing
A Community trade mark application which has been accorded a date of filing
shall, in the Member States, be equivalent to a regular national filing, where
appropriate with the priority claimed for the Community trade mark application.
SECTION 3
EXHIBITION PRIORITY
Article 33 - Exhibition priority
1. If an applicant for a Community trade mark has displayed goods or services
under the mark applied for, at an official or officially recognised
international exhibition falling within the terms of the Convention on
International Exhibitions signed at Paris on 22 November 1928 and last revised
on 30 November 1972, he may, if he files the application within a period of six
months from the date of the first display of the goods or services under the
mark applied for, claim a right of priority from that date within the meaning
of Article 31.
2. An applicant who wishes to claim priority pursuant to paragraph 1 must file
evidence of the display of goods or services under the mark applied for under
the conditions laid down in the Implementing Regulation.
3. An exhibition priority granted in a Member State or in a third country does
not extend the period of priority laid down in Article 29.
SECTION 4
CLAIMING THE SENIORITY OF A NATIONAL TRADE MARK
Article 34 - Claiming the seniority of a national trade mark
1. The proprietor of an earlier trade mark registered in a Member State,
including a trade mark registered in the Benelux countries, or registered under
international arrangements having effect in a Member State, who applies for an
identical trade mark for registration as a Community trade mark for goods or
services which are identical with or contained within those for which the
earlier trade mark has been registered, may claim for the Community trade mark
the seniority of the earlier trade mark in respect of the Member State in or
for which it is registered.
2. Seniority shall have the sole effect under this Regulation that, where the
proprietor of the Community trade mark surrenders the earlier trade mark or
allows it to lapse, he shall be deemed to continue to have the same rights as
he would have had if the earlier trade mark had continued to be registered.
3. The seniority claimed for the Community trade mark shall lapse if the
earlier trade mark the seniority of which is claimed is declared to have been
revoked or to be invalid or if it is surrendered prior to the registration of
the Community trade mark.
Article 35 - Claiming seniority after registration of the Community trade mark
1. The proprietor of a Community trade mark who is the proprietor of an earlier
identical trade mark registered in a Member State, including a trade mark
registered in the Benelux countries, or of a trade mark registered under
international arrangements having effect in a Member State, for identical goods
or services, may claim the seniority of the earlier trade mark in respect of
the Member State in or for which it is registered.
2. Article 34 (2) and (3) shall apply.
TITLE IV
REGISTRATION PROCEDURE
SECTION 1
EXAMINATION OF APPLICATIONS
Article 36 - Examination of the conditions of filing
1. The Office shall examine whether:
(a) the Community trade mark application satisfies the requirements for the
accordance of a date of filing in accordance with Article 27;
(b) the Community trade mark application complies with the conditions laid down
in the Implementing Regulation;
(c) where appropriate, the class fees have been paid within the prescribed
period.
2. Where the Community trade mark application does not satisfy the requirements
referred to in paragraph 1 the Office shall request the applicant to remedy the
deficiencies or the default on payment within the prescribed period.
3. If the deficiencies or the default on payment established pursuant to
paragraph 1 (a) are not remedied within this period, the application shall not
be dealt with as a Community trade mark application. If the applicant complies
with the Office's request, the Office shall accord as the date of filing of the
application the date on which the deficiencies or the default on payment
established are remedied.
4. If the deficiencies established pursuant to paragraph 1 (b) are not remedied
within the prescribed period, the Office shall refuse the application.
5. If the default on payment established pursuant to paragraph 1 (c) is not
remedied within the prescribed period, the application shall be deemed to be
withdrawn unless it is clear which categories of goods or services the amount
paid is intended to cover.
6. Failure to satisfy the requirements concerning the claim to priority shall
result in loss of the right of priority for the application.
7. Failure to satisfy the requirements concerning the claiming of seniority of
a national trade mark shall result in loss of that right for the application.
Article 37 - Examination of the conditions relating to the entitlement of the
proprietor
1. Where, pursuant to Article 5, the applicant may not be the proprietor of a
Community trade mark, the application shall be refused.
2. The application may not be refused before the applicant has been given the
opportunity to withdraw his application or submit his observations.
Article 38 - Examination as to absolute grounds for refusal
1. Where, under Article 7, a trade mark is ineligible for registration in
respect of some or all of the goods or services covered by the Community trade
mark application, the application shall be refused as regards those goods or
services.
2. Where the trade mark contains an element which is not distinctive, and where
the inclusion of said element in the trade mark could give rise to doubts as to
the scope of protection of the trade mark, the Office may request, as a
condition for registration of said trade mark, that the applicant state that he
disclaims any exclusive right to such element. Any disclaimer shall be
published together with the application or the registration of the Community trade
mark, as the case may be.
3. The application shall not be refused before the applicant has been allowed
the opportunity of withdrawing or amending the application or of submitting his
observations.
SECTION 2
SEARCH
Article 39 - Search
1. Once the Office has accorded a date of filing to a Community trade mark
application and has established that the applicant satisfies the conditions
referred to in Article 5, it shall draw up a Community search report citing
those earlier Community trade marks or Community trade mark applications
discovered which may be invoked under Article 8 against the registration of the
Community trade mark applied for.
2. As soon as a Community trade mark application has been accorded a date of
filing, the Office shall transmit a copy thereof to the central industrial
property office of each Member State which has informed the Office of its
decision to operate a search in its own register of trade marks in respect of
Community trade mark applications.
3. Each of the central industrial property offices referred to in paragraph 2
shall communicate to the Office within three months as from the date on which
it received the Community trade mark application a search report which shall
either cite those earlier national trade marks or trade mark applications
discovered which may be invoked under Article 8
against the registration of the Community trade mark applied for, or state that
the search has revealed no such rights.
4. An amount shall be paid by the Office to each central industrial property
office for each search report provided by that office in accordance with
paragraph 3. The amount, which shall be the same for each office, shall be
fixed by the Budget Committee by means of a decision adopted by a majority of
three-quarters of the representatives of the Member States.
5. The Office shall transmit without delay to the applicant for the Community
trade mark the Community search report and the national search reports received
within the time limit laid down in paragraph 3.
6. Upon publication of the Community trade mark application, which may not take
place before the expiry of a period of one month as from the date on which the
Office transmits the search reports to the applicant, the Office shall inform
the proprietors of any earlier Community trade marks or Community trade mark
applications cited in the Community search report of the publication of the
Community trade mark application.
7. The Commission shall, five years after the opening of the Office for the
filing of applications, submit to the Council a report on the operation of the
system of searching resulting from this Article, including the payments made to
Member States under paragraph 4, and, if necessary, appropriate proposals for
amending this Regulation with a view to adapting the system of searching on the
basis of the experience gained and bearing in mind developments in searching
techniques.
SECTION 3
PUBLICATION OF THE APPLICATION
Article 40 - Publication of the application
1. If the conditions which the application for a Community trade mark must
satisfy have been fulfilled and if the period referred to in Article 39 (6) has
expired, the application shall be published to the extent that it has not been
refused pursuant to Articles 37 and 38.
2. Where, after publication, the application is refused under Articles 37 and
38, the decision that it has been refused shall be published upon becoming
final.
SECTION 4
OBSERVATIONS BY THIRD PARTIES AND OPPOSITION
Article 41 - Observations by third parties
1. Following the publication of the Community trade mark application, any
natural or legal person and any group or body representing manufacturers,
producers, suppliers of services, traders or consumers may submit to the Office
written observations, explaining on which grounds under Article 7, in
particular, the trade mark shall not be registered
ex officio. They shall not be parties to the proceedings before the Office.
2. The observations referred to in paragraph 1 shall be communicated to the
applicant who may comment on them.
Article 42 - Opposition
1. Within a period of three months following the publication of a Community
trade mark application, notice of
opposition to registration of the trade mark may be given on the grounds that
it may not be registered under Article 8:
(a) by the proprietors of earlier trade marks referred to in Article 8 (2) as
well as licensees authorised by the proprietors of those trade marks, in
respect of Article 8 (1) and (5);
(b) by the proprietors of trade marks referred to in Article 8 (3);
(c) by the proprietors of earlier marks or signs referred to in Article 8 (4)
and by persons authorised under the relevant national law to exercise these
rights.
2. Notice of opposition to registration of the trade mark may also be given,
subject to the conditions laid down in paragraph 1, in the event of the
publication of an amended application in accordance with the second sentence of
Article 44 (2).
3. Opposition must be expressed in writing and must specify the grounds on
which it is made. It shall not be treated as duly entered until the opposition
fee has been paid. Within a period fixed by the Office, the opponent may submit
in support of his case facts, evidence and arguments.
Article 43 - Examination of opposition
1. In the examination of the opposition the Office shall invite the parties, as
often as necessary, to file observations, within a period set them by the
Office, on communications from the other parties or issued by itself.
2. If the applicant so requests, the proprietor of an earlier Community trade
mark who has given notice of opposition shall furnish proof that, during the
period of five years preceding the date of publication of the Community trade
mark application, the earlier Community trade mark has been put to genuine use
in the Community in connection with the goods or services in respect of which
it is registered and which he cites as justification for his opposition, or
that there are proper reasons for non-use, provided the earlier Community trade
mark has at that date been registered for not less than five years. In the
absence of proof to this effect, the opposition shall be rejected.
If the earlier Community trade mark has been used in relation to part only of
the goods or services for which it is registered it shall, for the purposes of
the examination of the opposition, be deemed to be registered in respect only
of that part of the goods or services.
3. Paragraph 2 shall apply to earlier national trade marks referred to in
Article 8 (2) (a), by substituting use in the Member State in which the earlier
national trade mark is protected for use in the Community.
4. The Office may, if it thinks fit, invite the parties to make a friendly
settlement.
5. If examination of the opposition reveals that the trade mark may not be
registered in respect of some or all of the goods or services for which the
Community trade mark application has been made, the application shall be
refused in respect of those goods or services. Otherwise the oppositi6n shall
be rejected.
6. The decision refusing the application shall be published upon becoming
final.
SECTION 5
WITHDRAWAL, RESTRICTION AND AMENDMENT OF THE APPLICATION
Article 44 - Withdrawal, restriction and amendment of the application
1. The applicant may at any time withdraw his Community trade mark application
or restrict the list of goods or services contained therein. Where the
application has already been published, the withdrawal or restriction shall
also be published.
2. In other respects, a Community trade mark application may be amended, upon
request of the applicant, only by correcting the name and address of the
applicant, errors of wording or of copying, or obvious mistakes, provided that
such correction does not substantially change the trade mark or extend the list
of goods or services. Where the amendments affect the representation of the
trade mark or the list of goods or services and are made after publication of
the application, the trade mark application shall be published as amended.
SECTION 6
REGISTRATION
Article 45 - Registration
Where an application meets the requirements of this Regulation and where no
notice of opposition has been given within the period referred to in Article 42
(1) or where opposition has been rejected by a definitive decision, the trade
mark shall be registered as a Community trade mark, provided that the
registration fee has been paid within the period prescribed. If the fee is not
paid within this period the application shall be deemed to be withdrawn.
TITLE V
DURATION, RENEWAL AND ALTERATION OF COMMUNITY TRADE MARKS
Article 46 - Duration of registration
Community trade marks shall be registered for a period of ten years from the
date of filing of the application.
Registration may be renewed in accordance with Article 47 for further periods
of ten years.
Article 47 - Renewal
1. Registration of the Community trade mark shall be renewed at the request of
the proprietor of the trade mark or any person expressly authorised by him,
provided that the fees have been paid.
2. The Office shall inform the proprietor of the Community trade mark, and any
person having a registered right in respect of the Community trade mark, of the
expiry of the registration in good time before the said expiry. Failure to give
such information shall not involve the responsibility of the Office.
3. The request for renewal shall be submitted within a period of six months
ending on the last day of the month in which protection ends. The fees shall
also be paid within this period. Failing this, the request may be submitted and
the fees paid within a further period of six months following the day referred
to in the first sentence, provided that an additional fee is paid within this
further period.
4. Where the request is submitted or the fees paid in respect of only some of
the goods or services for which the Community trade mark is registered,
registration shall be renewed for those goods or services only.
5. Renewal shall take effect from the day following the date on which the
existing registration expires. The renewal shall be registered.
Article 48 - Alteration
1. The Community trade mark shall not be altered in the register during the
period of registration or on renewal thereof.
2. Nevertheless, where the Community trade mark includes the name and address
of the proprietor, any alteration thereof not substantially affecting the
identity of the trade mark as originally registered may be registered at the
request of the proprietor.
3. The publication of the registration of the alteration shall contain a
representation of the Community trade mark as altered. Third parties whose
rights may be affected by the alteration may challenge the registration thereof
within a period of three months following publication.
TITLE VI
SURRENDER, REVOCATION AND INVALIDITY
SECTION 1
SURRENDER
Article 49 - Surrender
1. A Community trade mark may be surrendered in respect of some or all of the
goods or services for which it is registered.
2. The surrender shall be declared to the Office in writing by the proprietor
of the trade mark. It shall not have effect until it has been entered in the
Register.
3. Surrender shall be entered only with the agreement of the proprietor of a
right entered in the Register. If a licence has been registered, surrender
shall only be entered in the Register if the proprietor of the trade mark
proves that he has informed the licensee of his intention to surrender; this
entry shall be made on expiry of the period prescribed by the Implementing
Regulation.
SECTION 2
GROUNDS FOR REVOCATION
Article 50 - Grounds for revocation
1. The rights of the proprietor of the Community trade mark shall be declared
to be revoked on application to the Office or on the basis of a counterclaim in
infringement proceedings:
(a) if, within a continuous period of five years, the trade mark has not been
put to genuine use in the Community in connection with the goods or services in
respect of which it is registered, and there are no proper reasons for non-use;
however, no person may claim that the proprietor's rights in a Community trade
mark should be revoked where, during the interval between expiry of the
five-year period and filing of the application or counterclaim, genuine use of
the trade mark has been started or resumed; the commencement or resumption of
use within a period of three months preceding the filing of the application or
counterclaim which began at the earliest on expiry of the continuous period of
five years of non-use shall, however, be disregarded where preparations for the
commencement or resumption occur only after the proprietor becomes aware that
the application or counterclaim may be filed;
(b) if, in consequence of acts or inactivity of the proprietor, the trade mark
has become the common name in the trade for a product or service in respect of
which it is registered;
(c) if, in consequence of the use made of it by the proprietor of the trade
mark or with his consent in respect of the goods or services for which it is
registered, the trade mark is liable to mislead the public, particularly as to
the nature, quality or geographical origin of those goods or services;
(d) if the proprietor of the trade mark no longer satisfies the conditions laid
down by Article 5.
2. Where the grounds for revocation of rights exist in respect of only some of
the goods or services for which the Community trade mark is registered, the
rights of the proprietor shall be declared to be revoked in respect of those
goods or services only.
SECTION 3
GROUNDS FOR INVALIDITY
Article 51 - Absolute grounds for invalidity
1. A Community trade mark shall be declared invalid on application to the
Office or on the basis of a counterclaim in infringement proceedings,
(a) where the Community trade mark has been registered in breach of the
provisions of Article 5 or of Article 7;
(b) where the applicant was acting in bad faith when he filed the application
for the trade mark.
2. Where the Community trade mark has been registered in breach of the
provisions of Article 7 (1) (b), (c) or (d), it may nevertheless not be
declared invalid if, in consequence of the use which has been made of it, it
has after registration acquired a distinctive character in relation to the
goods or services for which it is registered.
3. Where the ground for invalidity exists in respect of only some of the goods
or services for which the Community trade mark is registered, the trade mark
shall be declared invalid as regards those goods or services only.
Article 52 - Relative grounds for invalidity
1. A Community trade mark shall be declared invalid on application to the
Office or o~ the basis of a counterclaim in infringement proceedings:
(a) where there is an earlier trade mark as referred to in Article 8 (2) and
the conditions set out in paragraph 1 or paragraph 5 of that Article are
fulfilled;
(b) where there is a trade mark as referred to in Article 8 (3) and the
conditions set out in that paragraph are fulfilled;
(c) where there is an earlier right as referred to in Article 8 (4) and the
conditions set out in that paragraph are fulfilled.
2. A Community trade mark shall also be declared invalid on application to the
Office or on the basis of a counterclaim in infringement proceedings where the
use of such trade mark may be prohibited pursuant to the national law governing
the protection of any other earlier right an in particular:
(a) a right to a name;
(b) a right of personal portrayal;
(c) a copyright;
(d) an industrial property right.
3. A Community trade mark may not be declared invalid where the proprietor of a
right referred to in paragraphs 1 or 2 consents expressly to the registration
of the Community trade mark before submission of the application for a
declaration of invalidity or the counterclaim.
4. Where the proprietor of one of the rights referred to in paragraphs 1 or 2
has previously applied for a declaration that a Community trade mark is invalid
or made a counterclaim in infringement proceedings, he may not submit a new
application for a declaration of invalidity or lodge a counterclaim on the
basis of another of the said rights which he could have invoked in support of
his first application or counterclaim.
5. Article 51(3) shall apply.
Article 53 - Limitation in consequence of acquiescence
1. Where the proprietor of a Community trade mark has acquiesced, or a period
of five successive years, in the use of a later Community trade mark in the
Community while being aware of such use, he shall no longer be entitled on the
basis of the earlier trade mark either to apply for a declaration that the later
trade mark is invalid or to oppose the use of the later trade mark in respect
of the goods or services for which the later trade mark has been used, unless
registration of the later Community trade mark was applied for in bad faith.
2. Where the proprietor of an earlier national trade mark as referred to in
Article 8 (2) or of another earlier sign referred to in Article 8 (4) has
acquiesced, for a period of five successive years, in the use of a later
Community trade mark in the Member State in which the earlier trade mark or the
other earlier sign is protected while being aware of such use, he shall no
longer be entitled on the basis of the earlier trade mark or of the other
earlier sign either to apply for a declaration that the later trade mark is
invalid or to oppose the use of the later trade mark in respect of the goods or
services for which the
later trade mark has been used, unless registration of the late Community trade
mark was applied for in bad faith.
3. In the cases referred to in paragraphs 1 and 2, the proprietor of a later
Community trade mark shall not be entitled to oppose the use of the earlier
right, even though that right may no longer be invoked against the later
Community trade mark.
SECTION 4
CONSEQUENCES OF REVOCATION AND INVALIDITY
Article 54 - Consequences of revocation and invalidity
1. The Community trade mark shall be deemed not to have had, as from the date
of the application for revocation or of the counterclaim, the effects specified
in this Regulation, to the extent that the rights of the proprietor have been
revoked.
An earlier date, on which one of the grounds for revocation occurred, may be
fixed in the decision at the request of one of the parties.
2. The Community trade mark shall be deemed not to have had, as from the
outset, the effects specified in this Regulation, to the extent that the trade
mark has been declared invalid.
3. Subject to the national provisions relating either to claims for
compensation for damage caused by negligence or lack of good faith on the part
of the proprietor of the trade mark, or to unjust enrichment, the retroactive
effect of revocation or invalidity of the trade mark shall not affect:
(a) any decision on infringement which has acquired the authority of a final
decision and been enforced prior to the revocation or invalidity decision;
(b) any contract concluded prior to the revocation or invalidity decision, in
so far as it has been performed before that decision; however, repayment, to an
extent justified by the circumstances, of sums paid under the relevant
contract, may be claimed on grounds of equity.
SECTION 5
PROCEEDINGS IN THE OFFICE IN RELATION TO REVOCATION OR INVALIDITY
Article 55 - Application for revocation or for a declaration of invalidity
1. An application for revocation of the rights of the proprietor of a Community
trade mark or for a declaration that the trade mark is invalid may be submitted
to the Office:
(a) where Articles 50 and 51 apply, by any natural or legal person and any
group or body set up for the purpose of representing the interests of
manufacturers, producers, suppliers of services, traders or consumers, which
under the terms of the law governing it has the capacity in its own name to sue
and be sued;
(b) where Article 52 (1) applies, by the persons referred to in Article 42 (1);
(c) where Article 52 (2) applies, by the owners of the earlier rights referred
to in that provision or by the persons who are entitled under the law of the
Member State concerned to exercise the rights in question.
2. The application shall be filed in a written reasoned statement. It shall not
be deemed to have been filed until the fee has been paid.
3. An application for revocation or for a declaration of invalidity shall be
inadmissible if an application relating to the same subject matter and cause of
action, and involving the same parties, has been adjudicated on by a court in a
Member State and has acquired the authority of a final decision.
Article 56 - Examination of the application
1. In the examination of the application for revocation of rights or for a
declaration of invalidity, the Office shall invite the parties, as often as
necessary, to file observations, within a period to be fixed by the Office, on
communications from the other parties or issued by itself.
2. If the proprietor of the Community trade mark so requests, the proprietor of
an earlier Community trade mark, being a party to the invalidity proceedings,
shall furnish proof that, during the period of five years preceding the date of
the application for a declaration of invalidity, the earlier Community trade
mark has been put to genuine use in the Community in connection with the goods
or services in respect of which it is registered and which he cites as
justification for his application, or that there are proper reasons for
non-use, provided the earlier Community trade mark has at that date been
registered for non-use, provided the earlier Community trade mark has at that
date been registered for not less than five years. If, at the date on which the
Community trade mark application was published, the earlier Community trade
mark had been registered for not less than five years, the proprietor of the
earlier Community trade mark shall furnish proof that, in addition, the
conditions contained in Article 43 (2) were satisfied at that date. In the
absence of proof to this effect the application for a declaration of invalidity
shall be rejected. If the earlier Community trade mark has been used in
relation to part only of the goods or services for which it is registered it
shall, for the purpose of the examination of the application for a declaration
of invalidity, be deemed to be registered in respect only of that part of the
goods or services.
3. Paragraph 2 shall apply to earlier national trade marks referred to in
Article 8 (2) (a), by substituting use in the Member State in which the earlier
national trade mark is protected for use in the Community.
4. The Office may, if it thinks fit, invite the parties to make a friendly
settlement.
5. If the examination of the application for revocation of rights or for a
declaration of invalidity reveals that the trade mark should not have been
registered in respect of some or all of the goods or services for which it is
registered, the rights of the proprietor of the Community trade mark shall be
revoked or it shall be declared invalid in respect of those goods or services.
Otherwise the application for revocation of rights or for a declaration of
invalidity shall be rejected.
6. The decision revoking the rights of the proprietor of the Community trade
mark or declaring it invalid shall be entered in the Register upon becoming
final.
TITLE VII
APPEALS
Article 57 - Decisions subject to appeal
1. An appeal shall lie from decisions of the examiners, Opposition Divisions,
Administration of Trade Marks and Legal Division and Cancellation Divisions. It
shall have suspensive effect.
2. A decision which does not terminate proceedings as regards one of the
parties can only be appealed together with the final decision, unless the
decision allows separate appeal.
Article 58 - Persons entitled to appeal and to be parties to appeal proceedings
Any party to proceedings adversely affected by a decision may appeal. Any other
parties to the proceedings shall be parties to the appeal proceedings as of
right.
Article 59 - Time limit and form of appeal
Notice of appeal must be filed in writing at the Office within two months after
the date of notification of the decision appealed from. The notice shall be
deemed to have been filed only when the fee for appeal has been paid. Within
four months after the date of notification of the decision, a written statement
setting out the grounds of appeal must be filed.
Article 60 - Interlocutory revision
1. If the department whose decision is contested considers the appeal to be
admissible and well founded, it shall rectify its decision. This shall not
apply where the appellant is opposed by another party to the proceedings.
2. If the decision is not rectified within one month after receipt of the
statement of grounds, the appeal shall be remitted to the Board of Appeal
without delay, and without comment as to its merit.
Article 61 - Examination of appeals
1. If the appeal is admissible, the Board of Appeal shall examine whether the
appeal is allowable.
2. In the examination of the appeal, the Board of Appeal shall invite the
parties, as often as necessary, to file observations, within a period to be
fixed by the Board of Appeal, on communications from the other parties or
issued by itself.
Article 62 - Decisions in respect of appeals
1. Following the examination as to the allowability of the appeal, the Board of
Appeal shall decide on the appeal. The Board of Appeal may either exercise any
power within the competence of the department which was responsible for the
decision appealed or remit the case to that department for further prosecution.
2. If the Board of Appeal remits the case for further prosecution to the
department whose decision was appealed, that department shall be bound by the
ratio decidendi of the Board of Appeal, in so far as the facts are the same.
3. The decisions of the Boards of Appeal shall take effect only as from the
date of expiration of the period referred to in Article 63 (5) or, if an action
has been brought before the Court of Justice within that period, as from the
date of rejection of such action.
Article 63 - Actions before the 9ourt of Justice
1. Actions may be brought before the Court of Justice against decisions of the
Boards of Appeal on appeals.
2. The action may be brought on grounds of lack of competence, infringement of
an essential procedural requirement, infringement of the Treaty, of this
Regulation or of any rule of law relating to their application or misuse of
power.
3. The Court of Justice has jurisdiction to annul or to alter the contested
decision.
4. The action shall be open to any party to proceedings before the Board of
Appeal adversely affected by its decision.
5. The action shall be brought before the Court of Justice within two months of
the date of notification of the decision of the Board of Appeal.
6. The Office shall be required to take the necessary measures to comply with
the judgment of the Court of Justice.
TITLE VIII
COMMUNITY COLLECTIVE MARKS
Article 64 - Community collective marks
1. A Community collective mark shall be a Community trade mark which is
described as such when the mark is applied for and is capable of distinguishing
the goods or services of the members of the association which is the proprietor
of the mark from those of other undertakings. Associations of manufacturers,
producers, suppliers of services, or traders which, under the terms of the law
governing them, have the capacity in their own name to have rights and
obligations of all kinds, to make contracts or accomplish other legal acts and
to sue and be sued, as well as legal persons governed by public law, may apply
for Community collective marks.
2. In derogation from Article 7 (1) (c), signs or indications which may serve,
in trade, to designate the geographical origin of the goods or services may
constitute Community collective marks within the meaning of paragraph 1. A
collective mark shall not entitle the proprietor to prohibit a third party from
using in the course of trade such signs or indications, provided he uses them
in accordance with honest practices in industrial or commercial matters; in
particular, such a mark may not be invoked against a third party who is
entitled to use a geographical name.
3. The provisions of this Regulation shall apply to Community collective marks,
unless Articles 65 to 72 provide otherwise.
Article 65 - Regulations governing use of the mark
1. An applicant for a Community collective mark must submit regulations
governing its use within the period prescribed.
2. The regulations governing use shall specify the persons authorised to use
the mark, the conditions of membership of the association and, where they
exist, the conditions of use of the mark including sanctions. The regulations
governing use of a mark referred to in Article 64 (2) must authorise any person
whose goods or services originate in the geographical area concerned to become
a member of the association which is the proprietor of the mark.
Article 66 - Refusal of the application
1. In addition to the grounds for refusal of a Community trade mark application
provided for in Articles 36 and 38, an application for a Community collective
mark shall be refused where the provisions of Article 64 or 65 are not
satisfied, or where the regulations governing use are contrary to public policy
or to accepted principles of morality.
2. An application for a Community collective mark shall also be refused if the
public is liable to be misled as regards the character or the significance of
the mark, in particular if it is likely to be taken to be something other than
a collective mark.
3. An application shall not be refused if the applicant, as a result of
amendment of the regulations governing use, meets the requirements of
paragraphs 1 and 2.
Article 67 - Observations by third parties
Apart from the cases mentioned in Article 41, any person, group or body
referred to in that Article may submit to the Office written observations based
on the particular grounds on which the application for a Community collective
mark should be refused under the terms of Article 66.
Article 68 - Use of marks
Use of a Community collective mark by any person who has authority to use it
shall satisfy the requirements of this Regulation, provided that the other
conditions which this Regulation imposes with regard to the use of Community
trade marks are fulfilled.
Article 69 - Amendment of the regulations governing use of the mark
1. The proprietor of a Community collective mark must submit to the Office any
amended regulations governing use.
2. The amendment shall not be mentioned in the Register if the amended
regulations do not satisfy the requirements of Article 65 or involve one of the
grounds for refusal referred to in Article 66.
3. Article 67 shall apply to amended regulations governing use.
4. For the purposes of applying this Regulation, amendments to the regulations
governing use shall take effect only from the date of entry of the mention of
the amendment in the Register.
Article 70 - Persons who are entitled to bring an action for infringement
1. The provisions of Article 22 (3) and (4) concerning the rights of licensees
shall apply to every person who hasauthority to use a Community collective
mark.
2. The proprietor of a Community collective mark shall be entitled to claim
compensation on behalf of persons who haveauthority to use the mark where they
have sustained damage in consequence of unauthorised use of the mark.
Article 71 - Grounds for revocation
Apart from the grounds for revocation provided for in Article 50, the rights of
the proprietor of a Community collectivemark shall be revoked on application to
the Office or on the basis of a counterclaim in infringement proceedings, if:
(a) the proprietor does not take reasonable steps to prevent the mark being
used in a manner incompatible with theconditions of use, where these exist,
laid down in the regulations governing use, amendments to which have,
whereappropriate, been mentioned in the Register;
(b) the manner in which the mark has been used by the proprietor has caused it
to become liable to mislead the public inthe manner referred to in Article 66
(2);
(c) an amendment to the regulations governing use of the mark has been
mentioned in the Register in breach of theprovisions of Article 69 (2), unless
the proprietor of the mark, by further amending the regulations governing
use,complies with the requirements of those provisions.
Article 72 - Grounds for invalidity
Apart from the grounds for invalidity provided for in Articles 51 and 52, a
Community collective mark which isregistered in breach of the provisions of
Article 66 shall be declared invalid on application to the Office or on the
basis ofa counterclaim in infringement proceedings, unless the proprietor of
the mark, by amending the regulations governinguse, complies with the
requirements of those provisions.
TITLE IX
PROCEDURE
SECTION 1
GENERAL PROVISIONS
Article 73 - Statement of reasons on which decisions are based
Decisions of the Office shall state the reasons on which they are based. They
shall be based only on reasons or evidenceon which the parties concerned have
had on opportunity to present their comments.
Article 74 - Examination of the facts by the Office of its own motion
1. In proceedings before it the Office shall examine the facts of its own
motion; however, in proceedings relating torelative grounds for refusal of
registration, the Office shall be restricted in this examination to the facts,
evidence andarguments provided by the parties and the relief sought.
2. The Office may disregard facts or evidence which are not submitted in due
time by the parties concerned.
Article 75 - Oral proceedings
1. If the Office considers that oral proceedings would be expedient they shall
be held either at the instance of the Officeor at the request of any party to
the proceedings.
2. Oral proceedings before the examiners, the Opposition Division and the
Administration of Trade Marks and LegalDivision shall not be public.
3. Oral proceedings, including delivery of the decision, shall be public before
the Cancellation Division and the Boardsof Appeal, in so far as the department
before which the proceedings are taking place does not decide otherwise in
caseswhere admission of the public could have serious and unjustified disadvantages,
in particular for a party to theproceedings.
Article 76 - Taking of evidence
1. In any proceedings before the Office, the means of giving or obtaining
evidence shall include the following:
(a) hearing the parties;
(b) requests for information;
(c) the production of documents and items of evidence;
(d) hearing witnesses;
(e) opinions by experts;
(f) statements in writing sworn or affirmed or having a similar effect under
the law of the State in which the statement isdrawn up.
2. The relevant department may commission one of its members to examine the
evidence adduced.
3. If the Office considers it necessary for a party, witness or expert to give
evidence orally, it shall issue a summons tothe person concerned to appear
before it.
4. The parties shall be informed of the hearing of a witness or expert before
the Office. They shall have the right to bepresent and to put questions to the
witness or expert.
Article 77 - Notification
The Office shall, as a matter of course, notify those concerned of decisions
and summonses and of any notice or othercommunication from which a time limit
is reckoned, or of which those concerned must be notified under otherprovisions
of this Regulation or of the Implementing Regulation, or of which notification has
been ordered by thePresident of the Office.
Article 78 - Restitutio in integrum
1. The applicant for or proprietor of a Community trade mark or any other party
to proceedings before the Office who, inspite of all due care required by the
circumstances having been taken, was unable to observe a time limit vis-à-vis
theOffice shall, upon application, have his rights re-established if the
non-observance in question has the directconsequence, by virtue of the
provisions of this Regulation, of causing the loss of any right or means of
redress.
2. The application must be filed in writing within two months from the removal
of the cause of non-compliance with the time limit. The omitted act must be
completed within this period. The application shall only be admissible within
the year immediately following the expiry of the unobserved time limit. In the
case of non-submission of he request for renewal of registration or of
non-payment of a renewal fee, the further period of six months provided in
Article 47 (3), third sentence, shall be deducted from the period of one year.
3. The application must state the grounds on which it is based and must set out
the facts on which it relies. It shall not be deemed to be filed until the fee
for re-establishment of rights has been paid.
4. The department competent to decide on the omitted act shall decide upon the
application.
5. The provisions of this Article shall not be applicable to the time limits
referred to in paragraph 2 of this Article,
Articles 29 (1) and 42 (1).
6. Where the applicant for or proprietor of a Community trade mark has his
rights re-established, he may not invoke his rights vis-à-vis a third party
who, in good faith, has put goods on the market or supplied services under a
sign which is identical with or similar to the Community trade mark in the
course of the period between the loss of rights in the application or in the
Community trade mark and publication of the mention of re-establishment of
those rights.
7. A third party who may avail himself of the provisions of paragraph 6 may
bring third party proceedings against the decision re-establishing the rights
of the applicant for or proprietor of a Community trade mark within a period of
two months as from the date of publication of the mention of re-establishment
of those rights.
8. Nothing in this Article shall limit the right of a Member State to grant
restitutio in integrum in respect of time limits provided for in this
Regulation and to be observed vis-à-vis the authorities of such State.
Article 79 - Reference to general principles
In the absence of procedural provisions in this Regulation, the Implementing
Regulation, the fees regulations or the rules of procedure of the Boards of
Appeal, the Office shall take into account the principles of procedural law
generally recognised in the Member States.
Article 80 - Termination of financial obligations
1. Rights of the Office to the payment of a fee shall be extinguished after
four years from the end of the calendar year in which the fee fell due.
2. Rights against the Office for the refunding of fees or sums of money paid in
excess of a fee shall be extinguished after four years from the end of the
calendar year in which the right arose.
3. The period laid down in paragraphs 1 and 2 shall be interrupted in the case
covered by paragraph 1 by a request for payment of the fee and in the case
covered by paragraph 2 by a reasoned claim in writing. On interruption it shall
begin again immediately and shall end at the latest six years after the end of
the year in which it originally began, unless, in the meantime, judicial
proceedings to enforce the right have begun; in this case the period shall end
at the earliest one year after the judgement has acquired the authority of a
final decision.
SECTION 2
COSTS
Article 81 - Costs
1. The losing party in opposition proceedings, proceedings for revocation,
proceedings for a declaration of invalidity or appeal proceedings shall bear
the fees incurred by the other party as well as all costs, without prejudice to
Article 115 (6), incurred by him essential to the proceedings, including travel
and subsistence and the remuneration of an agent, adviser or advocate, within
the limits of the scales set for each category of costs under the conditions
laid down in the Implementing Regulation.
2. However, where each party succeeds on some and fails on other heads, or if
reasons of equity so dictate, the Opposition Division, Cancellation Division or
Board of Appeal shall decide a different apportionment of costs.
3. The party who terminates the proceedings by withdrawing the Community trade
mark application, the opposition, the application for revocation of rights, the
application for a declaration of invalidity or the appeal, or by not renewing
registration of the Community trade mark or by surrendering the Community trade
mark, shall bear the fees and the costs incurred by the other party as
stipulated in paragraphs 1 and 2.
4. Where a case does not proceed to judgment the costs shall be at the
discretion of the Opposition Division, Cancellation Division or Board of
Appeal.
5. Where the parties conclude before the Opposition Division, Cancellation
Division or Board of Appeal a settlement of costs differing from that provided
for in the preceding paragraphs, the department concerned shall take note of
that agreement.
6. On request the registry of the Opposition Division or Cancellation Division
or Board of Appeal shall fix the amount of the costs to be paid pursuant to the
preceding paragraphs. The amount so determined may be reviewed by a decision of
the Opposition Division or Cancellation Division or Board of Appeal on a
request filed within the prescribed period.
Article 82 - Enforcement of decisions fixing the amount of costs
1. Any final decision of the Office fixing the amount of costs shall be
enforceable.
2. Enforcement shall be governed by the rules of civil procedure in force in
the State in the territory of which it is carried out. The order for its
enforcement shall be appended to the decision, without other formality than
verification of the authenticity of the decision, by the national authority
which the Government of each Member State shall designate for this purpose and
shall make known to the Office and to the Court of Justice.
3. When these formalities have been completed on application by the party
concerned, the latter may proceed to enforcement in accordance with the
national law, by bringing the matter directly before the competent authority.
4. Enforcement may be suspended only by a decision of the Court of Justice.
However, the courts of the country concerned shall have jurisdiction over
complaints that enforcement is being carried out in an irregular manner.
SECTION 3
INFORMATION OF THE PUBLIC AND OF THE OFFICIAL AUTHORITIES OF THE MEMBER
STATES
Article 83 - Register of Community trade marks
The Office shall keep a register to the known as the Register of Community
trade marks, which shall contain those particulars the registration or
inclusion of which is provided for by this Regulation or by the Implementing
Regulation.
The Register shall be open to public inspection.
Article 84 - Inspection of files
1. The files relating to Community trade mark applications which have not yet
been published shall not be made available for inspection without the consent
of the applicant.
2. Any person who can prove that the applicant for a Community trade mark has
stated that after the trade mark has been registered he will invoke the rights
under it against him may obtain inspection of the files prior to the
publication of that application and without the consent of the applicant.
3. Subsequent to the publication of the Community trade mark application, the
files relating to such application and the resulting trade mark may be
inspected on request.
4. However, where the files are inspected pursuant to paragraphs 2 or 3,
certain documents in the file may be withheld from inspection in accordance
with the provisions of the Implementing Regulation.
Article 85 - Periodical publications
The Office shall periodically publish:
(a) a Community Trade Marks Bulletin containing entries made in the Register of
Community trade marks as well as other particulars the publication of which is
prescribed by this Regulation or by the Implementing Regulation;
(b) an Official Journal containing notices and information of a general
character issued by the President of the Office, as well as any other
information relevant to this Regulation or its implementation.
Article 86 - Administrative cooperation
Unless otherwise provided in this Regulation or in national laws, the Office
and the courts or authorities of the Member States shall on request give
assistance to each other by communicating information or opening files for
inspection.
Where the Office lays files open to inspection by courts, Public Prosecutors'
Offices or central industrial property offices, the inspection shall not be
subject to the restrictions laid down in Article 84.
Article 87 - Exchange of publications
1. The Office and the central industrial property offices of the Member States
shall despatch to each other on request and for their own use one or more
copies of their respective publications free of charge.
2. The Office may conclude agreements relating to the exchange or supply of
publications.
SECTION 4
REPRESENTATION
Article 88 - General principles of representation
1. Subject to the provisions of paragraph 2, no person shall be compelled to be
represented before the Office.
2. Without prejudice to paragraph 3, second sentence, natural or legal persons
not having either their domicile or their principal place of business or a real
and effective industrial or commercial establishment in the Community must be
represented before the Office in accordance with Article 89 (1) in all
proceedings established by this Regulation, other than in filing an application
for a Community trade mark; the Implementing Regulation may permit other
exceptions.
3. Natural or legal persons having their domicile or principal place of
business or a real and effective industrial or commercial establishment in the
Community may be represented before the Office by an employee, who must file
with it a signed authorization for insertion on the files, the details of which
are set out in the Implementing Regulation. An employee of a legal person to
which this paragraph applies may also represent other legal persons which have
economic connections with the first legal person, even if those other legal
persons have neither their domicile nor their principal place of business nor a
real and effective industrial or commercial establishment within the Community.
Article 89 - Professional representatives
1. Representation of natural or legal persons before the Office may only be
undertaken by;
(a) any legal practitioner qualified in one of the Member States and having his
place of business within the Community, to the extent that he is entitled,
within the said State, to act as a representative in trade mark matters; or
(b) professional representatives whose names appear on the list maintained for
this purpose by the Office.
Representatives acting before the Office must file with it a signed
authorization for insertion on the files, the details of which are set out in
the Implementing Regulation.
2. Any natural person who fulfils the following conditions may be entered on
the list of professional representatives:
(a) he must be a national of one of the Member States;
(b) he must have his place of business or employment in the Community;
(c) he must be entitled to represent natural or legal persons in trade mark
matters before the central industrial property office of the Member State in
which he has his place of business or employment. Where, in that State, the
entitlement is not conditional upon the requirement of special professional
qualifications, persons applying to be entered on the list who act in trade
mark matters before the central industrial property office of the said State
must have habitually so acted for at least five years. However, persons whose
professional qualification to represent natural or legal persons in trade mark
matters before the central industrial property office of one of the Member
States is officially recognised in accordance with the regulations laid down by
such State shall not be subject to the condition of having exercised the
profession.
3. Entry shall be effected upon request, accompanied by a certificate furnished
by the central industrial property office of the Member State concerned, which
must indicate that the conditions laid down in paragraph 2 are fulfilled.
4. The President of the Office may grant exemption from:
(a) the requirement of paragraph 2 (c), second sentence, if the applicant
furnishes proof that he has acquired the requisite qualification in another
way;
(b) the requirement of paragraph 2 (a) in special circumstances.
5. The conditions under which a person may be removed from the list of
professional representatives shall be laid down in the Implementing Regulation.
TITLE X
JURISDICTION AND PROCEDURE IN LEGAL ACTIONS RELATING TO
COMMUNITY TRADE MARKS
SECTION 1
APPLICATION OF THE CONVENTION ON JURISDICTION AND ENFORCEMENT
Article 90 - Application of the Convention on Jurisdiction and Enforcement
1. Unless otherwise specified in this Regulation, the Convention on Jurisdiction
and the Enforcement of Judgements in Civil and Commercial Matters, signed in
Brussels on 27 September 1968, as amended by the Conventions on the Accession
to that Convention of the States acceding to the European Communities, the
whole of which Convention and of which Conventions of Accession are hereinafter
referred to as the 'Convention on Jurisdiction and Enforcement', shall apply to
proceedings relating to Community trade marks and applications for Community
trade marks, as well as to proceedings relating to simultaneous and successive
actions on the basis of Community trade marks and national trade marks.
2. In the case of proceedings in respect of the actions and claims referred to
in Article 92:
(a) Articles 2, 4, 5 (1), (3), (4) and (5) and Article 24 of the Convention on
Jurisdiction and Enforcement shall not apply;
(b) Articles 17 and 18 of that Convention shall apply subject to the
limitations in Article 93 (4) of this Regulation;
(c) the provisions of Title II of that Convention which are applicable to
persons domiciled in a Member State shall also be applicable to persons who do
not have a domicile in any Member State but have an establishment therein.
SECTION 2
DISPUTES CONCERNING THE INFRINGEMENT AND VALIDITY OF COMMUNITY TRADE MARKS
Article 91 - Community trade mark courts
1. The Member States shall designate in their territories as limited a number
as possible of national courts and tribunals of first and second instance,
hereinafter referred to as 'Community trade mark courts', which shall perform
the functions assigned to them by this Regulation.
2. Each Member State shall communicate to the Commission within three years of
the entry into force of this Regulation a list of Community trade mark courts
indicating their names and their territorial jurisdiction.
3. Any change made after communication of the list referred to in paragraph 2
in the number, names or territorial jurisdiction of the courts shall be
notified without delay by the Member State concerned to the Commission.
4. The information referred to in paragraphs 2 and 3 shall be notified by the
Commission to the Member States and published in the Official Journal of the
European Communities.
5. As long as a Member State has not communicated the list as stipulated in
paragraph 2, jurisdiction for any proceedings resulting from an action or
application covered by Article 92, and for which the courts of that State have
jurisdiction under Article 93, shall lie with that court of the State in
question which would have jurisdiction ratione loci and ratione materiae in the
case of proceedings relating to a national trade mark registered in that State.
Article 92 - Jurisdiction over infringement and validity
The Community trade mark courts shall have exclusive jurisdiction:
(a) for all infringement actions and - if they are permitted under national law
- actions in respect of threatened infringement relating to Community trade
marks;
(b) for actions for declaration of non-infringement, if they are permitted
under national law;
(c) for all actions brought as a result of acts referred to in Article 9 (3),
second sentence;
(d) for counterclaims for revocation or for a declaration of invalidity of the
Community trade mark pursuant to Article 96.
Article 93 - International jurisdiction
1. Subject to the provisions of this Regulation as well as to any provisions of
the Convention on Jurisdiction and Enforcement applicable by virtue of Article
90, proceedings in respect of the actions and claims referred to in Article 92
shall be brought in the courts of the Member State in which the defendant is
domiciled or, if he is not domiciled in any of the Member States, in which he
has an establishment.
2. If the defendant is neither domiciled nor has an establishment in any of the
Member States, such proceedings shall be brought in the courts of the Member
State in which the plaintiff is domiciled or, if he is not domiciled in any of
the Member States, in which he has an establishment.
3. If neither the defendant nor the plaintiff is so domiciled or has such an
establishment, such proceedings shall be brought in the courts of the Member
State where the Office has its seat.
4. Notwithstanding the provisions of paragraphs 1, 2 and 3:
(a) Article 17 of the Convention on Jurisdiction and Enforcement shall apply if
the parties agree that a different Community trade mark court shall have
jurisdiction;
(b) Article 18 of that Convention shall apply if the defendant enters an
appearance before a different Community trade mark court.
5. Proceedings in respect of the actions and claims referred to in Article 92,
with the exception of actions for a declaration of non-infringement of a
Community trade mark, may also be brought in the courts of the Member State in
which the act of infringement has been committed or threatened, or in which an
act within the meaning of Article 9 (3), second sentence, has been committed.
Article 94 - Extent of jurisdiction
1. A Community trade mark court whose jurisdiction is based on Article 93 (1)
to (4) shall have jurisdiction in respect of:
- acts of infringement committed or threatened within the territory of any of
the Member States,
- acts within the meaning of Article 9 (3), second sentence, committed within
the territory of any of the Member States.
2. A Community trade mark court whose jurisdiction is based on Article 93 (5)
shall have jurisdiction only in respect of
acts committed or threatened within the territory of the Member State in which
that court is situated.
Article 95 - Presumption of validity - Defence as to the merits
1. The Community trade mark courts shall treat the Community trade mark as
valid unless its validity is put in issue by the defendant with a counterclaim
for revocation or for a declaration of invalidity.
2. The validity of a Community trade mark may not be put in issue in an action
for a declaration of non-infringement.
3. In the actions referred to in Article 92 (a) and (c) a plea relating to
revocation or invalidity of the Community trade mark submitted otherwise than
by way of a counterclaim shall be admissible in so far as the defendant claims
that the rights of the proprietor of the Community trade mark could be revoked
for lack of use or that Community trade mark could be declared invalid on
account of an earlier right of the defendant.
Article 96 - Counterclaims
1. A counterclaim for revocation or for a declaration of invalidity may only be
based on the grounds for revocation or invalidity mentioned in this Regulation.
2. A Community trade mark court shall reject a counterclaim for revocation or
for a declaration of invalidity if a decision taken by the Office relating to
the same subject matter and cause of action and involving the same parties has
already become final.
3. If the counterclaim is brought in a legal action to which the proprietor of
the trade mark is not already a party, he shall be informed thereof and may be
joined as a party to the action in accordance with the conditions set out in
national law.
4. The Community trade mark court with which a counterclaim for revocation or
for a declaration of invalidity of the Community trade mark has been filed
shall inform the Office of the date on which the counterclaim was filed. The
latter shall record this fact in the Register of Community trade marks.
5. Article 56 (3), (4), (5) and (6) shall apply.
6. Where a Community trade mark court has given a judgment which has become
final on a counterclaim for revocation or for invalidity of a Community trade
mark, a copy of the judgment shall be sent to the Office. Any party may request
information about such transmission. The Office shall mention the judgment in
the Register of Community trade marks in accordance with the provisions of the
Implementing Regulation.
7. The Community trade mark court hearing a counterclaim for revocation or for
a declaration of invalidity may stay the proceedings on application by the
proprietor of the Community trade mark and after hearing the other parties and
may request the defendant to submit an application for revocation or for a
declaration of invalidity to the Office within a time limit which it shall
determine. If the application is not made within the time limit, the
proceedings shall continue; the counterclaim shall be deemed withdrawn. Article
100 (3) shall apply.
Article 97 - Applicable law
1. The Community trade mark courts shall apply the provisions of this
Regulation.
2. On all matters not covered by this Regulation a Community trade mark court
shall apply its national law, including its private international law.
3. Unless otherwise provided in this Regulation, a Community trade mark court
shall apply the rules of procedure governing the same type of action relating
to a national trade mark in the Member State where it has its seat.
Article 98 - Sanctions
1. Where a Community trade mark court finds that the defendant has infringed or
threatened to infringe a Community trade mark, it shall, unless there are
special reasons for not doing so, issue an order prohibiting the defendant from
proceeding with the acts which infringed or would infringe the Community trade
mark. It shall also take such measures in accordance with its national law as
are aimed at ensuring that this prohibition is complied with.
2. In all other respects the Community trade mark court shall apply the law of
the Member State to which the acts of infringement or threatened infringement
were committed, including the private international law.
Article 99 - Provisional and protective measures
1. Application may be made to the courts of a Member State, including Community
trade mark courts, for such provisional, including protective, measures in
respect of a Community trade mark or Community trade mark application as may be
available under the law of that State in respect of a national trade mark, even
if, under this Regulation, a Community trade mark court of another Member State
has jurisdiction as to the substance of the matter.
2. A Community trade mark court whose jurisdiction is based on Article 93 (1),
(2), (3) or (4) shall have jurisdiction to grant provisional and protective
measures which, subject to any necessary procedure for recognition and
enforcement pursuant to Title Ill of the Convention on Jurisdiction and
Enforcement, are applicable in the territory of any Member State. No other
court shall have such jurisdiction.
Article 100 - Specific rules on related actions
1. A Community trade mark court hearing an action referred to in Article 92,
other than an action for a declaration of non-infringement shall, unless there
are special grounds for continuing the hearing, of its own motion after hearing
the parties or at the request of one of the parties and after hearing the other
parties, stay the proceedings where the validity of the Community trade mark is
already in issue before another Community trade mark court on account of a
counterclaim or where an application for revocation or for a declaration of
invalidity has already been filed at the Office.
2. The Office, when hearing an application for revocation or for a declaration
of invalidity shall, unless there are special grounds for continuing the
hearing, of its own motion after hearing the parties or at the request of one
of the parties and after hearing the other parties, stay the proceedings where
the validity of the Community trade mark is already in issue on account of a
counterclaim before a Community trade mark court. However, if one of the
parties to the proceedings before the Community trade mark court so requests,
the court may, after hearing the other parties to these proceedings, stay the
proceedings. The Office shall in this instance continue the proceedings pending
before it.
3. Where the Community trade mark court stays the proceedings it may order
provisional and protective measures for the duration of the stay.
Article 101 - Jurisdiction of Community trade mark courts of second instance
-Further appeal
1. An appeal to the Community trade mark courts of second instance shall lie
from judgements of the Community trade mark courts of first instance in respect
of proceedings arising from the actions and claims referred to in Article 92.
2. The conditions under which an appeal may be lodged with a Community trade
mark court of second instance shall be determined by the national law of the
Member State in which that court is located.
3. The national rules concerning further appeal shall be applicable in respect
of judgements of Community trade mark courts of second instance.
SECTION 3
OTHER DISPUTES CONCERNING COMMUNITY TRADE MARKS
Article 102 - Supplementary provisions on the jurisdiction of national courts
other than Community trade marks courts
1. Within the Member State whose courts have jurisdiction under Article 90 (1)
those courts shall have jurisdiction for actions other than those referred to
in Article 92, which would have jurisdiction ratione loci and ratione materiae
in the case of actions relating to a national trade mark registered in that
State.
2. Actions relating to a Community trade mark, other than those referred to in
Article 92, for which no court has jurisdiction under Article 90 (1) and
paragraph 1 of this Article may be heard before the courts of the Member State
in which the Office has its seat.
Article 103 - Obligation of the national court
A national court which is dealing with an action relating to a Community trade
mark, other than the action referred to in Article 92, shall treat the trade
mark as valid.
SECTION 4
TRANSITIONAL PROVISION
Article 104 - Transitional provision relating to the application of the
Convention on Jurisdiction and Enforcement
The provisions of the Convention on Jurisdiction and Enforcement which are
rendered applicable by the preceding Articles shall have effect in respect of
any Member State solely in the text of the Convention which is in force in
respect
of that State at any given time.
TITLE XI
EFFECTS ON THE LAWS OF THE MEMBER STATES
SECTION 1
CIVIL ACTIONS ON THE BASIS OF MORE THAN ONE TRADE MARK
Article 105 - Simultaneous and successive civil actions on the basis of
Community trade marks and national trade marks
1. Where actions for infringement involving the same cause of action and
between the same parties are brought in the courts of different Member States,
one seized on the basis of a Community trade mark and the other seized on the
basis of a national trade mark:
(a) the court other than the court first seized shall of its own motion decline
jurisdiction in favour of that court where the trade marks concerned are
identical and valid for identical goods or services. The court which would be required
to decline jurisdiction may stay its proceedings if the jurisdiction of the
other court is contested;
(b) the court other than the court first seized may stay its proceedings where
the trade marks concerned are identical and valid for similar goods or services
and where the trade marks concerned are similar and valid for identical or
similar goods or services.
2. The court hearing an action for infringement on the basis of a Community
trade mark shall reject the action if a final judgment on the merits has been
given on the same cause of action and between the same parties on the basis of
an identical national trade mark valid for identical goods or services.
3. The court hearing an action for infringement on the basis of a national
trade mark shall reject the action if a final judgment on the merits has been
given on the same cause of action and between the same parties on the basis of
an identical Community trade mark valid for identical goods or services. 4.
Paragraphs 1, 2 and 3 shall not apply in respect of provisional, including
protective, measures.
SECTION 2
APPLICATION OF NATIONAL LAWS FOR THE PURPOSE OF PROHIBITING THE USE OF
COMMUNITY TRADE MARKS
Article 106 - Prohibition of use of Community trade marks
1. This Regulation shall, unless otherwise provided for, not affect the right
existing under the laws of the Member States to invoke claims for infringement
of earlier rights within the meaning of Article 8 or Article 52 (2) in relation
to the use of a later Community trade mark. Claims for infringement of earlier
rights within the meaning of Article 8 (2) and (4) may, however, no longer be
invoked if the proprietor of the earlier right may no longer apply for a
declaration that the Community trade mark is invalid in accordance with Article
53 (2).
2. This Regulation shall, unless otherwise provided for, not affect the right
to bring proceedings under the civil, administrative or criminal law of a
Member Sate or under provisions of Community law for the purpose of prohibiting
the use of a Community trade mark to the extent that the use of a national
trade mark may be prohibited under the law of that Member State or under
Community law.
Article 107 - Prior rights applicable to particular localities
1. The proprietor of an earlier right which only applies to a particular
locality may oppose the use of the Community trade mark in the territory where
his right is protected in so far as the law of the Member State concerned so
permits.
2. Paragraph 1 shall cease to apply if the proprietor of the earlier right has
acquiesced in the use of the Community trade mark in the territory where his
right is protected for a period of five successive years, being aware of such
use, unless the Community trade mark was applied for in bad faith.
3. The proprietor of the Community trade mark shall not be entitled to oppose
use of the right referred to in paragraph 1 even though that right may no
longer be invoked against the Community trade mark.
SECTION 3
CONVERSION INTO A NATIONAL TRADE MARK APPLICATION
Article 108 - Request for the application of national procedure
1. The applicant for or proprietor of a Community trade mark may request the
conversion of his Community trade mark
application or Community trade mark into a national trade mark application
(a) to the extent that the Community trade mark application is refused,
withdrawn, or deemed to be withdrawn;
(b) to the extent that the Community trade mark ceases to have effect.
2. Conversion shall not take place:
(a) where the rights of the proprietor of the Community trade mark have been
revoked on the grounds of non-use, unless in the Member State for which
conversion is requested the Community trade mark has been put to use which
would be considered to be genuine use under the laws of that Member State;
(b) for the purpose of protection in a Member State in which, in accordance
with the decision of the Office or of the national court, grounds for refusal
of registration or grounds for revocation or invalidity apply to the Community
trade mark application or Community trade mark.
3. The national trade mark application resulting from the conversion of a
Community trade mark application or a Community trade mark shall enjoy in
respect of the Member State concerned the date of filing or the date of priority
of that application or trade mark and, where appropriate, the seniority of a
trade mark of that State claimed under Article 34 or 35.
4. Where:
- the Community trade mark application is deemed to be withdrawn or is refused
by a decision of the Office which has become final,
- the Community trade mark ceases to have effect as a result of a decision of
the Office which has become final or as a result of registration of surrender
of the Community trade mark, the Office shall notify to the applicant or
proprietor a communication fixing a period of three months from the date of
that communication in which a request for conversion may be filed.
5. Where the Community trade mark application is withdrawn or the Community
trade mark ceases to have effect as a result of failure to renew the
registration, the request for conversion shall be filed within three months
after the date on which the Community trade mark application is withdrawn or on
which the registration of the Community trade mark expires.
6. Where the Community trade mark ceases to have effect as a result of a
decision of a national court, the request for conversion shall be filed within
three months after the date on which that decision acquired the authority of a
final decision.
7. The effect referred to in Article 32 shall lapse if the request is not filed
in due time.
Article 109 - Submission, publication and transmission of the request for
conversion
1. A request for conversion shall be filed with the Office and shall specify
the Member States in which application of the procedure for registration of a
national trade mark is desired. The request shall not be deemed to be filed
until the conversion fee has been paid.
2. If the Community trade mark application has been published, receipt of any
such request shall be recorded in the Register of Community trade marks and the
request for conversion shall be published.
3. The Office shall check whether conversion may be requested in accordance
with Article 108 (1), whether the request has been filed within the period laid
down in Article 108 (4), (5) or (6), as the case may be, and whether the
conversion fee has been paid. If these conditions are fulfilled, the Office
shall transmit the request to the central industrial property offices of the
States specified therein. At the request of the central industrial property
office of a State concerned, the Office shall give it any information enabling
that office to decide as to the admissibility of the request.
Article 110 - Formal requirements for conversion
1. Any central industrial property office to which the request is transmitted
shall decide as to its admissibility,
2. A Community trade mark application or a Community trade mark transmitted in
accordance with Article 109 shall not be subjected to formal requirements of
national law which are different from or additional to those provided for in
this Regulation or in the Implementing Regulation.
3. Any central industrial property office to which the request is transmitted
may require that the applicant shall, within not less than two months:
(a) pay the national application fee;
(b) file a translation in one of the official languages of the State in
question of the request and of the documents accompanying it;
(c) indicate an address for service in the State in question;
(d) supply a representation of the trade mark in the number of copies specified
by the State in question.
TITLE XII
THE OFFICE
SECTION 1
GENERAL PROVISIONS
Article 111 - Legal status
1. The Office shall be a body of the Community. It shall have legal
personality.
2. In each of the Member States the Office shall enjoy the most extensive legal
capacity accorded to legal persons under their laws; it may, in particular,
acquire or dispose of movable and immovable property and may be a party to
legal proceedings.
3. The Office shall be represented by its President.
Article 112 - Staff
1. The Staff Regulations of officials of the European Communities, the
Conditions of Employment of other servants of the European Communities, and the
rules adopted by agreement between the Institutions of the European Communities
for giving effect to those Staff Regulations and Conditions of Employment shall
apply to the staff of the Office, without prejudice to the application of Article
131 to the members of the Boards of Appeal.
2. Without prejudice to Article 120, the powers conferred on each Institution
by the Staff Regulations and by the Conditions of Employment of other servants
shall be exercised by the Office in respect of its staff.
Article 113 - Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall
apply to the Office.
Article 114 - Liability
1. The contractual liability of the Office shall be governed by the law applicable
to the contract in question.
2. The Court of Justice shall be competent to give judgment pursuant to any
arbitration clause contained in a contract concluded by the Office.
3. In the case of non-contractual liability, the Office shall, in accordance with
the general principles common to the laws of the Member States, make good any
damage caused by its departments or by its servants in the performance of their
duties.
4. The Court of Justice shall have jurisdiction in disputes relating to
compensation for the damage referred to in paragraph 3.
5. The personal liability of its servants towards the Office shall be governed
by the provisions laid down in their Staff Regulations or in the Conditions of
Employment applicable to them.
Article 115 - Languages
1. The application for a Community trade mark shall be filed in one of the
official languages of the European Community.
2. The languages of the Office shall be English, French, German, Italian and
Spanish.
3. The applicant must indicate a second language which shall be a language of
the Office the use of which he accepts as a possible language of proceedings
for opposition, revocation or invalidity proceedings. If the application was
filed in a language which is not one of the languages of the Office, the Office
shall arrange to have the application, as described in
Article 26 (1), translated into the language indicated by the applicant.
4. Where the applicant for a Community trade mark is the sole party to
proceedings before the Office, the language of proceedings shall be the
language used for filing the application for a Community trade mark. If the
application was made in a language other than the languages of the Office, the
Office may send written communications to the applicant in the second language
indicated by the applicant in his application.
5. The notice of opposition and an application for revocation or invalidity
shall be filed in one of the languages of the Office.
6. If the language chosen, in accordance with paragraph 5, for the notice of
opposition or the application for revocation or invalidity is the language of
the application for a trade mark or the second language indicated when the
application was filed, that language shall be the language of the proceedings.
If the language chosen, in accordance with paragraph 5, for the notice of
opposition or the application for revocation or invalidity is neither the
language of the application for a trade mark nor the second language indicated
when the application was filed, the opposing party or the party seeking
revocation or invalidity shall be required to produce, at his own expense, a
translation of his application either into the language of the application for
a trade mark, provided that it is a language of the Office, or into the second
language indicated when the application was filed. The translation shall be
produced within the period prescribed in the implementing regulation. The
language into which the application has been translated shall then become the
language of the proceedings.
7. Parties to opposition, revocation, invalidity or appeal proceedings may
agree that a different official language of the European Community is to be the
language of the proceedings.
Article 116 - Publication; entries in the Register
1. An application for a Community trade mark, as described in Article 26 (1),
and all other information the publication of which is prescribed by this
Regulation or the implementing regulation, shall be published in all the
official languages of the European Community.
2. All entries in the Register of Community trade marks shall be made in all
the official languages of the European Community.
3. In cases of doubt, the text in the language of the Office in which the
application for the Community trade mark was filed shall be authentic. If the
application was filed in an official language of the European Community other
than one of the languages of the Office, the text in the second language
indicated by the applicant shall be authentic.
Article 117 - Translation service
The translation services required for the functioning of the Office shall be
provided by the Translation Centre of the Bodies of the Union once this begins
operation.
Article 118 - Control of legality
1. The Commission shall check the legality of those acts of the President of
the Office in respect of which Community law does not provide for any check on
legality by another body and of acts of the Budget Committee attached to the
Office pursuant to Article 133.
2. It shall require that any unlawful acts as referred to in paragraph 1 be
altered or annulled.
3. Member States and any person directly and personally involved may refer to
the Commission any act as referred to in paragraph 1, whether express or
implied, for the Commission to examine the legality of that act Referral shall
be made to the Commission within 15 days of the day on which the party
concerned first became aware of the act in question. The Commission shall take
a decision within one month. If no decision has been taken within this period,
the case shall be deemed to have been dismissed.
SECTION 2
MANAGEMENT OF THE OFFICE
Article 119 - Powers of the President
1. The Office shall be managed by the President.
2. To this end the President shall have in particular the following functions
and powers:
(a) he shall take all necessary steps, including the adoption of internal
administrative instructions and the publication of notices, to ensure the
functioning of the Office;
(b) he may place before the Commission any proposal to amend this Regulation,
the Implementing Regulation, the rules of procedure of the Boards of Appeal,
the fees regulations and any other rules applying to Community trade marks
after consulting the Administrative Board and, in the case of the fees
regulations and the budgetary provisions of this Regulation, the Budget
Committee;
(c) he shall draw up the estimates of the revenue and expenditure of the Office
and shall implement the budget;
(d) he shall submit a management report to the Commission, the European Parliament
and the Administrative Board each year;
(e) he shall exercise in respect of the staff the powers laid down in Article
112 (2);
(f) he may delegate his powers.
3. The President shall be assisted by one or more Vice-Presidents. If the
President is absent or indisposed, the Vice-President or one of the
Vice-Presidents shall take his place in accordance with the procedure laid down
by the Administrative Board.
Article 120 - Appointment of senior officials
1. The President of the Office shall be appointed by the Council from a list of
at most three candidates, which shall be prepared by the Administrative Board.
Power to dismiss the President shall lie with the Council, acting on a proposal
from the Administrative Board.
2. The term of office of the President shall not exceed five years. This term
of office shall be renewable.
3. The Vice-President or Vice-Presidents of the Office shall be appointed or
dismissed as in paragraph 1, after consultation of the President.
4. The Council shall exercise disciplinary authority over the officials
referred to in paragraphs 1 and 3 of this Article.
SECTION 3
ADMINISTRATIVE BOARD
Article 121 - Creation and powers
1. An Administrative Board is hereby set up, attached to the Office. Without
prejudice to the powers attributed to the Budget Committee in Section 5 -
budget and financial control - the Administrative Board shall have the powers
defined below.
2. The Administrative Board shall draw up the lists of candidates provided for
in Article 120.
3. It shall fix the date for the first filing of Community trade mark
applications, pursuant to Article 143 (3).
4. It shall advise the President on matters for which the Office is
responsible.
5. It shall be consulted before adoption of the guidelines for examination in
the Office and in the other cases provided for in this Regulation.
6. It may deliver opinions and requests for information to the President and to
the Commission where it considers that this is necessary.
Article 122 - Composition
1. The Administrative Board shall be composed of one representative of each
Member State and one representative of the Commission and their alternates.
2. The members of the Administrative Board may, subject to the provisions of
its rules of procedure, be assisted by advisers or experts.
Article 123 - Chairmanship
1. The Administrative Board shall elect a chairman and a deputy chairman from
among its members. The deputy chairman shall ex officio replace the chairman in
the event of his being prevented from attending to his duties.
2. The duration of the terms of office of the chairman and the deputy chairman
shall be three years. The terms of office shall be renewable.
Article 124 - Meetings
1. Meetings of the Administrative Board shall be convened by its chairman.
2. The President of the Office shall take part in the deliberations, unless the
Administrative Board decides otherwise.
3. The Administrative Board shall hold an ordinary meeting once a year; in
addition, it shall meet on the initiative of its chairman or at the request of
the Commission or of one-third of the Member States.
4. The Administrative Board shall adopt rules of procedure.
5. The Administrative Board shall take its decisions by a simple majority of
the representatives of the Member States.
However, a majority of three-quarters of the representatives of the Member
States shall be required for the decisions which the Administrative Board is
empowered to take under Article 120 (1) and (3). In both cases each Member
State shall have one vote.
6. The Administrative Board may invite observers to attend its meetings.
7. The Secretariat for the Administrative Board shall be provided by the
Office.
SECTION 4
IMPLEMENTATION OF PROCEDURES
Article 125 - Competence
For taking decisions in connection with the procedures laid down in this
Regulation, the following shall be competent:
(a) Examiners;
(b) Opposition Divisions;
(c) an Administration of Trade Marks and Legal Division;
(d) Cancellation Divisions;
(e) Boards of Appeal.
Article 126 - Examiners
An examiner shall be responsible for taking decisions on behalf of the Office
in relation to an application for registration of a Community trade mark,
including the matters referred to in Articles 36, 37, 38 and 66, except in so
far as an Opposition Division is responsible.
Article 127 - Opposition Divisions
1. An Opposition Division shall be responsible for taking decisions on an
opposition to an application to register a Community trade mark.
2. An Opposition Division shall consist of three members. At least one of the
members must be legally qualified.
Article 128 - Administration of Trade Marks and Legal Division
1. The Administration of Trade Marks and Legal Division shall be responsible
for those decisions required by this Regulation which do not fall within the
competence of an examiner, an Opposition Division or a Cancellation Division.
It shall in particular be responsible for decisions in respect of entries in
the Register of Community trade marks.
2. It shall also be responsible for keeping the list of professional
representatives which is referred to in Article 89.
3. A decision of the Division shall be taken by one member.
Article 129 - Cancellation Divisions
1. A Cancellation Division shall be responsible for taking decisions in relation
to an application for the revocation or declaration of invalidity of a
Community trade mark.
2. A Cancellation Division shall consist of three members. At least one of the
members must be legally qualified.
Article 130 - Boards of Appeal
1. The Boards of Appeal shall be responsible for deciding on appeals from
decisions of the examiners, Opposition Divisions, Administration of Trade Marks
and Legal Division and Cancellation Divisions.
2. A Board of Appeal shall consist of three members. At least two of the
members must be legally qualified.
Article 131 - Independence of the members of the Boards of Appeal
1. The members, including the chairmen, of the Boards of Appeal shall be
appointed, in accordance with the procedure laid down in Article 120, for the
appointment of the President of the Office, for a term of five years. They may
not be removed from office during this term, unless there are serious grounds
for such removal and the Court of Justice, on application by the body which
appointed them, takes a decision to this effect. Their term of office shall be
renewable.
2. The members of the Boards of Appeal shall be independent. In their decisions
they shall not be bound by any instructions.
3. The members of the Boards of Appeal may not be examiners or members of the
Opposition Divisions, Administration of Trade Marks and Legal Division or
Cancellation Divisions.
Article 132 - Exclusion and objection
1. Examiners and members of the Divisions set up within the Office or of the
Boards of Appeal may not take part in any proceedings if they have any personal
interest therein, or if they have previously been involved as representatives
of one of the parties. Two of the three members of an Opposition Division shall
not have taken part in examining the application. Members of the Cancellation
Divisions may not take part in any proceedings if they have participated in the
final decision on the case in the proceedings for registration or opposition
proceedings. Members of the Boards of Appeal may not take part in appeal
proceedings if they participated in the decision under appeal.
2. If, for one of the reasons mentioned in paragraph 1 or for any other reason,
a member of a Division or of a Board of Appeal considers that he should not
take part in any proceedings, he shall inform the Division or Board
accordingly.
3. Examiners and members of the Divisions or of a Board of Appeal may be
objected to by any party for one of the reasons mentioned in paragraph 1, or if
suspected of partiality. An objection shall not be admissible if, while being
aware of a reason for objection, the party has taken a procedural step. No
objection may be based upon the nationality of examiners or members.
4. The Divisions and the Boards of Appeal shall decide as to the action to be
taken in the cases specified in paragraphs 2 and 3 without the participation of
the member concerned. For the purposes of taking this decision the member who
withdraws or has been objected to shall be replaced in the Division or Board of
Appeal by his alternate.
SECTION 5
BUDGET AND FINANCIAL CONTROL
Article 133 - Budget Committee
1. A Budget Committee is hereby set up, attached to the Office. The Budget
Committee shall have the powers assigned to it in this Section and in Article
39 (4).
2. Articles 121(6), 122, 123 and 124 (1) to (4), (6) and (7) shall apply to the
Budget Committee mutatis mutandis.
3. The Budget Committee shall take its decisions by a simple majority of the
representatives of the Member States.
However, a majority of three-quarters of the representatives of the Member
States shall be required for the decisions which the Budget Committee is
empowered to take under Articles 39 (4), 135 (3) and 138. In both cases each
Member State shall have one vote.
Article 134 - Budget
1. Estimates of all the Office's revenue and expenditure shall be prepared for
each financial year and shall be shown in the Office's budget, and each
financial year shall correspond with the calendar year.
2. The revenue and expenditure shown in the budget shall be in balance.
3. Revenue shall comprise, without prejudice to other types of income, total
fees payable under the fees regulations, and, to the extent necessary, a
subsidy entered against a specific heading of the general budget of the
European Communities, Commission Section.
Article 135 - Preparation of the budget
1. The President shall draw up each year an estimate of the Office's revenue
and expenditure for the following year and shall send it to the Budget
Committee not later than 31 March in each year, together with a list of posts.
2. Should the budget estimates provide for a Community subsidy, the Budget
Committee shall immediately forward the estimate to the Commission, which shall
forward it to the budget authority of the Communities. The Commission may
attach an opinion on the estimate along with an alternative estimate.
3. The Budget Committee shall adopt the budget, which shall include the
Office's list of posts. Should the budget estimates contain a subsidy from the
general budget of the Communities, the Office's budget shall, if necessary, be
adjusted.
Article 136 - Financial control
Control of commitment and payment of all expenditure and control of the
existence and recovery of all revenue of the Office shall be carried out by the
Financial Controller appointed by the Budget Committee.
Article 137 - Auditing of accounts
1. Not later than 31 March in each year the President shall transmit to the
Commission, the European Parliament, the Budget Committee and the Court of
Auditors accounts of the Office's total revenue and expenditure for the
preceding financial year. The Court of Auditors shall examine them in
accordance with Article 188c of the Treaty.
2. The Budget Committee shall give a discharge to the President of the Office
in respect of the implementation of the budget.
Article 138 - Financial provisions
The Budget Committee shall, after consulting the Court of Auditors of the
European Communities and the Commission, adopt internal financial provisions
specifying, in particular, the procedure for establishing and implementing the
Office's budget. As far as is compatible with the particular nature of the
Office, the financial provisions shall be based on the financial regulations
adopted for other bodies set up by the Community.
Article 139 - Fees regulations
1. The fees regulations shall determine in particular the amounts of the fees
and the ways in which they are to be paid.
2. The amounts of the fees shall be fixed at such a level as to ensure that the
revenue in respect thereof is in principle sufficient for the budget of the
Office to be balanced.
3. The fees regulations shall be adopted and amended in accordance with the
procedure laid down in Article 141.
TITLE XIII
FINAL PROVISIONS
Article 140 - Community implementing provisions
1. The rules implementing this Regulation shall be adopted in an Implementing
Regulation.
2. In addition to the fees provided for in the preceding Articles, fees shall
be charged, in accordance with the detailed rules of application laid down in
the Implementing Regulation, in the cases listed below:
1.alteration of the representation of a Community trade mark;
2.late payment of the registration fee;
3.issue of a copy of the certificate of registration;
4.registration of the transfer of a Community trade mark;
5.registration of a licence or another right in respect of a Community trade
mark;
6.registration of a licence or another right in respect of an application for a
Community trade mark;
7.cancellation of the registration of a licence or another right;
8.alteration of a registered Community trade mark;
9.issue of an extract from the Register;
10.inspection of the files;
11.issue of copies of file documents;
12.issue of certified copies of the application;
13.communication of information in a file;
14.review of the determination of the procedural costs to be refunded.
3. The Implementing Regulation and the rules of procedure of the Boards of
Appeal shall be adopted and amended in accordance with the procedure laid down in
Article 141.
Article 141 - Establishment of a committee and procedure for the adoption of
implementing regulations
1. The Commission shall be assisted by a Committee on Fees, Implementation
Rules and the Procedure of the Boards of Appeal of the Office for Harmonization
in the Internal Market (trade marks and designs), which shall be composed of
representatives of the Member States and chaired by a representative of the
Commission.
2. The representative of the Commission shall submit to the Committee a draft
of the measures to be taken. The Committee shall deliver its opinion on the
draft within a time limit which the chairman may lay down according to the
urgency of the matter. The opinion shall be delivered by the majority laid down
in Article 148 (2) of the Treaty in the case of decisions which the Council is
required to adopt on a proposal from the Commission. The votes of the
representatives of the Member States within the Committee shall be weighted in
the manner set out in that Article. The chairman shall not vote.
The Commission shall adopt the measures envisaged if they are in accordance
with the opinion of the Committee.
If the measures envisaged are not in accordance with the opinion of the
Committee, or if no Opinion is delivered, the Commission shall, without delay,
submit to the Council a proposal relating to the measures to be taken.
The Council shall act by a qualified majority.
If, on the expiry of a period of three months from the date of referral to the
Council, the Council has not acted, the proposed measures shall be adopted by
the Commission, save where the Council has decided against the measures by a
simple majority.
Article 142 - Compatibility with other Community legal provisions
This Regulation shall not affect Council Regulation (EEC) No 2081/92 on the
protection of geographical indications and designations of origin for
agricultural products and foodstuffs(7) of 14 July 1992, and in particular
Article 14 thereof.
Article 143 - Entry into force
1. This Regulation shall enter into force on the 60th day following that of its
publication in the Official Journal of the European Communities.
2. The Member States shall within three years following entry into force of
this Regulation take the necessary measures for the purpose of implementing
Articles 91 and 110 hereof and shall forthwith inform the Commission of those
measures.
3. Applications for Community trade marks may be filed at the Office from the
date fixed by the Administrative Board on the recommendation of the President
of the Office.
4. Applications for Community trade marks filed within three months before the
date referred to in paragraph 3 shall be deemed to have been filed on that
date.
This Regulation shall be binding in its entirety and directly applicable in all
Member States.