Here's a procedural point that IPKat team blogger Jeremy has been pondering. Since the Community trade mark and the national trade mark laws of European Union Member States have the same criteria for, eg, registrability, opposition, non-use and genuine use, it is perfectly possible for the same issue -- involving the same mark(s) and quite possibly the same parties -- to be the subject of conflict both in proceedings before OHIM and before the national courts of Member States.
Right: members of the ECJ, coming out of the woodwork ...
Where decisions of OHIM are challenged, appeals lie to the Court of First Instance and thereafter to the Court of Justice of the European Communities; where decisions of national offices are challenged, a court may refer one or more questions to the Court of Justice for a preliminary reference. What Jeremy is wondering about is the interrelationship of parallel proceedings. The ECJ has the facility to join cases, but does this entitle it to join an appeal in CTM proceedings with a reference for a preliminary ruling? Are there repercussions in terms of procedure and costs? What are the implications so far as the independence of Community and national systems are concerned? Has anyone written on this topic? Please let Jeremy know by email. All interesting and/or valuable replies will be published.
Another request from Jeremy: he has recently been introduced to the concept of meta-analysis of intellectual property literature. The idea is that, when a person encounters a field of intellectual property law, commerce, policy or practice for the first time, he may have no idea which things are important to read and which are not. A methodology of meta-analysis enables him to evaluate the available materials and decide not only which are more important or valuable but which he should read first. Thus literature which is current, which is based on identified sources and which is peer-reviewed will receive a higher "score" than literature that is old, based on unsupported generalisations and which has undergone no objective validation before it was published.
Do any readers of this weblog know of any such exercises having been done for intellectual property literature? As before, please let Jeremy know by email if you can help him at all.
Writing in Afro-IP, Darren Olivier discusses the first ever decision of an ARIPO Board of Appeal. For the unititiated, ARIPO is the African Regional Industrial Property Office. It administers the Banjul Protocol on Marks, which was adopted in 1993 and establishes a trade mark filing system under which an applicant may file a single application either at one of the contracting states or directly with the ARIPO Office, designating states in the application where he wishes his mark to be protected. According to the ARIPO website,
"The Protocol came into force on March 6, 1997 for Malawi, Swaziland and Zimbabwe. Lesotho and Tanzania have joined the Protocol in the course of 1999. It is expected that other ARIPO member states will ratify or accede to the Protocol in the near future".Darren says that it's not clear which countries have amended their national legislation, following conflicting reports that only Botswana, Zimbabwe, Lesotho and Swaziland may have done so. If any reader has current information on this, or has any comments concerning enforcement of ARIPO marks, can they please email Darren here and let him know.