In just under a week, the second swathe of provisions resulting from the EU reforms package go live. There are a number of changes that practitioners and applicants need to be aware of – not least the axing of the graphical representation requirement for EU trademarks and, with it, the introduction of the ‘multimedia mark’.

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RE: “What you see is what you get” – preparing for the imminent second wave of EU reform provisions

The new practice of the Office, that the priority claim is no longer examined in substance at the filing stage, should be changed as soon as possible, otherwise European Trademark Owners and the European economy will be harmed immensely.

Advocate General Niilo Jääskinen confirmed in Case C-190/10:

“It follows that precise determination of the date of filing is a constituent of the Community trade mark system.”

There exists a strong public interest in a correct, reliable and –in substance- examined priority date, which is published in the freely accessible, official EUTM register.

The (European) Economy cannot function when the filing-date/priority-date is not examined by the EUTM during the filing-process.

Trademarks are property laws, which also act as security/credit-interests with banks and other different kind of credit-lenders. They rely on the examined priority-date, with which the property right arises.

The filing date, or when priority is applied for, is a constituent of the EUTM-Register, as is the examination of the trademark-sign itself.

(The concrete suitability of a sign to serve as an indication of the company's origin is a constitutive requirement of trademark protection. For this reason, a sign, which lacks concrete distinctiveness, is excluded from trademark protection.)

The filing date is naturally examined during the filing-procedure, the same must be and is obviously with the priority-date. Because if priority is claimed, the priority is the filing-date.

The trademark-owner or a licensee is a declarative part in the EUTM-register, which doesn’t have to be examined and published: See also C‑163/15

The legislature did not want –inter alia- that the priority is later attempted to deny with fraud or deception in complicated and lengthy proceeding before courts or office procedures.

The examined priority and its publication in the trademark-register has its purpose to record and disclose the emergence of the trademark-right, which is also relevant under/for commercial and corporate law & acitivities, thereby contributing to guaranteeing legal certainty and protecting the property.

Last but not least, I wonder why the fees for EUTM-applications have been increased and, at the same time, important/critical examinations (priority) are reduced.

Erich Auer (www.trademarks.email)

Erich Auer, IVO-KERMARTIN GMBH on 26 Sep 2017 @ 21:11

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