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Thursday, 28 July 2005

RELATIVE GROUNDS CONSULTATION EXERCISE

The UK Patent Office is undertaking a pre-consultation exercise
on whether the Trade Mark Registrar should continue to conduct examinations of trade marks on the relative grounds. The pre-consultation is designed to identify major issues ahead of a full-scale consultation in 2006. A previous consultation took place in 2001 where 72% of those who expressed a view recommended a further consultation in the future. Since then the opposition system has changed so that where a mark is over 5 years old, the opponent must show use. Also, the Registry has introduced a system of preliminary indications in opposition cases. The pre-consultation only covers relative grounds objections by the Registrar. Rights owners would retain the right to undertake oppositions.

The IPKat says that this would be a major change. The relative grounds examination is one of the more special features of the UK system. It’s a bit of a luxury though and there’s certainly a financial argument instead of leaving it to owners to enforce their earlier rights.

9 comments:

Daniel Doherty said...

Relative grounds is an important aspect of the application system in the UK. However, the Examiner's decisions are sometimes inconsistent with both UK and EU jurisprudence and are commonly reversed by the Hearings Officer at an Oral Hearing.

Certain objections can be 'circumvented' by filing an application before OHIM which (although has its own problems) does not incorporate relative grounds within the application process. This certainly makes the Community trade mark a little more attractive.

However, the TM Registry may face similar problems as OHIM and CTM applicants. Not having a relative grounds check will certainly lead to an increase in oppositions, sometimes by vexatious trade mark owners. This further delays the progress of the application and will incur additional costs to all parties involved.

Trade mark owners will need to ensure that their trade mark attorneys/lawyers pay more attention to the Trade Marks Journal in order to oppose applications within time and so on. This in itself will prove expensive.

As an IP lawyer and an IP lecturer, my thoughts are that the grounds should be removed to make it more consistant with other member states and OHIM.

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