miercuri, 4 iunie 2014

This evening points 16, 17 and 18. Tomorrow, the end...

Point 16 of the instruction has the following content:

In case of submission of one or more oppositions concerning the same trademark application (abbreviation into Romanian = CIM), the following principles will be taken into account:
a) If against a CIM  are filled more oppositions, each is solved   separately, in chronological order of their submission date and there will be issued  a Notice  for each opposition resolved.
b) If against a CIM are filled more oppositions, each is solved separately, without considering that by the admission of one opposition, the others remain without object.
c) The Notices on solving the oppositions against the same CIM will be transmitted to the examiner. The decision concerning the trademark application will clearly mention these Notices for every opposition separately and will be duly and completely motivated.

The "principles" contained in point 16 of the instruction are as illegal as the provisions contained in point 14 of the same instruction. Again the authors do not understand that the parties, in opposition proceedings, must be equal and the conflicting rights invoked must be valid. FOR BOTH! This is a principle stated in the Article 20(3) of the trademarks law. If the first opposition is solved in favour of the opponent and the trademark application is rejected in its entirety, then one of the parties involved in the second opposition holds an uncertain right and, based on the symmetry principle, it should be suspended until the decision of the first opposition remains final. Only then it can decide on the other opposition(s). And yes, if the solution is finally confirmed, the other opposition has no object anymore thus, the fee must be returned to that opponent. Again the instruction, in this point 16, violates the principles of the trademark law, imposes unnecessary work and disadvantages the owners of the earlier trademarks involved. Only because of lack of experience in the trademark examination procedures!

Point 17 of the instruction requires:

In the application form for registration of the trademark shall be inserted a new section as follows: The applicant declares on his own responsibility, the registration of the trademark is required in good faith.

Is it not obvious that, until it is proven otherwise, in all cases good faith is presumed?
On the other hand, when the online filing procedure and form were implemented, in the framework of a cooperation programme with a European Agency, this provision in the instruction was instantly “forgotten”.

Point 18 of the instruction has the following content:

The trademark applications filed using the international route are examined, by the Bureau of International Examination, under Article 64 and 65 of the trademarks law and Common Regulations Under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to that Agreement.

Although seemingly innocuous, this point 18 of the instruction violates the principle of equal treatment contained in art. 2 of the Paris Convention for the Protection of Industrial Property, Act of Lisbon, in that the Instruction´s provisions do not apply to the international trademark applications. They will be examined "under Article 64 and 65 of the trademarks law and Common Regulation… ", which means that they will not "benefit" of the changes and interpretations to the trademarks law and implementation regulation coming from the provisions of the Service Instruction no 5/2012, changes and interpretations, outside the trademarks law and its spirit, that apply only for national applications. Why?

Provisions contained in the instruction at points 19 to 21 are useless because in OSIM, at least after the entry into force of the new law, on May 10, 2010, we proceeded in the same manner, and the provisions contained in sections 22 to 25 are organizational issues.

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