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TM Directive 89/104 21 December 1988 Harmonisation incomplete

MPI STUDY - POTENTIAL CHANGES TO EUROPEAN TRADE MARK PRACTICE APRAM 6 March 2012 Patrick Boyle. TM Directive 89/104 21 December 1988 Harmonisation incomplete

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TM Directive 89/104 21 December 1988 Harmonisation incomplete

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  1. MPI STUDY - POTENTIAL CHANGES TO EUROPEAN TRADE MARK PRACTICEAPRAM 6 March 2012 Patrick Boyle

  2. TM Directive 89/104 21 December 1988 • Harmonisation incomplete • CTMR 40/94 20 December 1993 (Codified in 2009 CTMR 207/2009) • Imbalance/Incoherence between two systems

  3. POSSIBLE CHANGES • What may change ? • examination • opposition/invalidity • non use: cluttering • infringement/limitations • interaction between systems • Feasibility and effects of such changes ?

  4. EXAMINATION • graphic representation • acquired distinctiveness for shape/colour marks • harmonised classification practice • inter Office/OHIM coordination • extra class fee

  5. OPPOSITION/INVALIDITY • protection of well-known marks against dissimilar goods/services • scope of protection (class headings) IP TRANSLATOR • clearer distinction between strong and weak marks • « neutralisation » rule should be abandoned • higher degree of attentiveness for pharmaceuticals should not be presumed

  6. NON USE : CLUTTERING • use of registered mark may constitute use of registered variation • use in one country sufficient ? (ONEL) • BUT forced coexistence…. • extra class fee • calculation of grace period for partially protected Madrid designations…

  7. INFRINGEMENT/LIMITATIONS • from what date? acquired distinctiveness not filing date… • harmonise categories of infringing use (for ex. use of a trade name) • descriptive use should extend to non distinctive use • honest referential use (commentary, criticism, parody…) • transit goods • restriction of CTM rights where not used…

  8. INTERACTION BETWEEN SYSTEMS • seniority: no longer necessary to abandon national rights • conversion: enforeceability of converted CTM ? • enhanced cooperation

  9. QUESTIONS ?

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