joi, 5 iunie 2014

And... the end!

Point 26 of the instruction has the following content:

In the case when,  according to  Article 22 of the trademarks law, the accelerated examination procedure is requested, this must be accompanied by the proof of payment of the corresponding fee without which the Trademarks and Geographical Indications Division cannot fit within the examination of the trademark application in three months.
The applicant of a trademark application who wishes accelerated examination must state this expressly in the trademark application form, which will be amended accordingly. The request for the accelerated examination must be accompanied by the copy of the proof of payment of the additional fee, according to Article 22(2) of the trademarks law.
Any accelerated examination request filed with OSIM after the date of the publication the trademark application cannot be considered even if it is accompanied by a payment of the legal fee and the payment made shall be refunded.

There is a principle known as that "ubi lex non distinguit nec nos distinguere debemus". The law does not provide for any special obligation of the applicant when he wants an accelerated examination, besides the payment of the examination fee substantially increased. Imposing a specific moment for the accelerated examination fee has no legal basis. Any bona fide specialist understands that article 22 paragraph 1 and 2, in conjunction with Article 1 of OG 41/1998, republished, means that the period of 6 or 3 months is running from the moment when the legal fee is paid due to the wording of Article 22(1) of the trademark law, "on condition of payment of filing fee and examination fee required by the trademarks law”. Accelerated examination is a special way which anyway cannot circumvent the legal procedures of opposition examination proceedings, which means prolonging the examination more than the three months stipulated by law. The legal fee for accelerated examination is three times higher than the normal examination and claiming it at the moment of the filing, when you still do not know if there will be or not filed an opposition against the trademark application is also unfair to the applicant, besides being illegal.

The Service Instruction no. 5/2012 is an error, starting from editing to the overwhelming majority of its content. Why was it necessary to roughly change the law through this service instruction, why OSIM examiners were forced to break the law applying this service instruction and how these actions of the authors of the instruction are positioned vs. the malfeasance of abuse, is to be established by the law enforcement bodies.

In the end, the Service Instruction no 5/2012 is the expression of the inability to understand that the world has changed, that a state institution cannot dictate something just because it wants so, firstly it must be legal, and not only that. It must be oriented to those people who are interested in the services provided by OSIM and pay the fees from which we live, those who are working in OSIM. Today nobody forces anyone to register a trademark, and the person concerned will address an application to OSIM only to the extent that this institution is attractive, respects the law and respects the citizens’ rights and interests. Otherwise, there are various possibilities to obtain registration of a mark to choose from, and OSIM… will remain with the “October instruction”! Only.

Anyway, point 26 of the instruction is caducous because last week, in a tentative of fully modifying of the Article 22 of the trademark law, the accelerated examination was repealed. So, the fee was not diminished but complete eliminated, not because the accelerated examination is now for free, just because is not anymore an option for the applicants!