Häupl - the AG opines
The IPKat's incredibly productive and enthusiastic friend Tibor Gold has given him a clue concerning the recent Opinion of Advocate-General Dámaso Ruiz-Jarabo Colomer in Case C-246/05 Armin Häupl v Lidl Stiftung & Co. KG, delivered on 26 October. This isn't (yet) in English and, because it was flagged as "approximation of laws" rather than "intellectual property", the IPKat didn't even spot its relevance to the IP community.
A full note from Tibor has been prepared for the CIPA Journal. Meanwhile the IPKat can tell you, briefly, that this is a reference to the European Court of Justice for a preliminary ruling from Austria. Lidl registered some international marks in October 1993, designating Austria. Those registrations took effect in Austria as of December 1993. Citing bureaucratic hassles over which it had no control and that mucked up its commercial strategy, Lidl didn't actually start using those marks till November 1998. What the Austrians want to know is (i) whether, when considering whether there has been a continous period of five years non-use, is that period measured from October or December 1993? Also, (ii) was Lidl entitled to rely on its reason for non-use or should it have changed its business strategy?
Since different EU Member States appear to have different means of computing the five-year non-use period, this question is ripe for harmonisation. After weighing up the pros and cons of the different solutions, the AG considers that, in Community law, the date that can be objectively and easily determined, ie the date when the registration procedure is finished, is best.
Left: it's not just Lidl's trade mark registrations that come under attack: see http://www.attac.de/lidl-kampagne/
As to proper reasons for non-use, on which Directive 89/104 is silent, the AG gains inspiration from Art. 19 of TRIPs, which says that the circumstances preventing use must be (i) an obstacle to using the mark which is (ii) independent of the owner’s will (eg import restrictions or public health issues). On this basis, if Lidl could have shifted its commercial strategy and used the mark, failure to do so would be Lidl's and no-one else's.
IP Review gets its own URL
CPA's quarterly intellectual property magazine IP Review has now been blessed with its own URL, www.ipreview.com. The IPKat welcomes the site's features, which include archives running all the way back ... to issue 2. Whatever happened to issue 1, mewses Merpel? Oversight - surely not! Copyright problems - hope not!
A recent circular from MARQUES, the organisation of European trade mark owners, has drawn the IPKat's attention to the launch of EUROCLASS, a new online tool to aid the classification of goods and services when filing a CTM application. EUROCLASS is essentially a database containing a comprehensive list of terms and expressions for goods and services that have been accepted by participating trade mark offices, together with a search engine to facilitate access. Accordingly, "if it's on the list of an office - it's acceptable by that office". The fruit of close cooperation between Swedish, British and OHIM-ish offices, EUROCLASS will be enlarged to include other national IP offices (of which another 10 have already expressed their interest).
Test EUROCLASS for yourself here
Praise and criticism can be sent to Javier.Rujas@oami.europa.eu
Other EUROCLASS goods and services (for example) here, here, here, here and here . Says Merpel, anyone fancy a trade mark search before selecting a brand name?
Friday, 10 November 2006
Posted by Jeremy at 5:46:00 am