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Thursday, 31 March 2011

Hours and minutes: the Advocate General speaks

The Court of Justice of the European Union is being kept very busy by intellectual property matters these days. Today's batch of Curia posts includes the Advocate General's Opinion in Case C‑190/10 Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys SA and Administración del Estado, a reference for a preliminary ruling from Spain.

The question has been published in English:
"May Article 27 of Council Regulation ...40/94 ... on the Community trade mark be interpreted in such a way as to enable account to be taken not only of the day but also of the hour and minute of filing of an application for registration of a Community trade mark with OHIM (provided that such information has been recorded) for the purposes of establishing temporal priority over a national trade mark application filed on the same day, where the national legislation governing the registration of national trade marks considers the time of filing to be relevant?".
The AG's Opinion alas, is in a smattering of Euro-tongues, including Latvian -- but again not in English. The French version reads like this:

«En l’état actuel du droit de l’Union, l’article 27 du règlement (CE) nº 40/94 du Conseil, du 20 décembre 1993, sur la marque communautaire, exclut qu’il soit tenu compte, au‑delà du jour de dépôt de la demande de la marque communautaire, également de l’heure et de la minute dudit dépôt.»
With the aid of Google's translation service this reads:

"In the current EU law, Article 27 of Regulation (EC) No 40/94 of 20 December 1993, the CTM, it does not take into account beyond the date of filing of the CTM, also an hour and minute of that deposit".
We get the message.  Merpel adds, this was no easy question, it seems.  The AG needed nearly 80 paragraphs and over 40 footnotes ...


Chris McLeod said...

The issue appears to be that Genesis opposed a Spanish application filed by the predecessor in title of Boys Toys, the opposition being based on two CTM applications which were filed on the same day as the Spanish application, but which were filed some five hours earlier. The oppositions were rejected because the applications were all deemed to have been filed at the same time, so the Genesis CTM applications were not earlier than the Spanish application.

The evocatively-named Tribunal Supremo had asked the General Court to clarify whether the hour and minute at which an application was filed could be taken into account when considering priority.

Fortunately for those of us who would prefer not to have to start filing applications at 00:01, the Advocate General says no. Here's hoping that the Court endorses this opinion.

Jeremy said...

Thanks so much, Chris, for this explanation.

My feeling is that, even if the current law does not take it into account, we live in a digital era in which hours, minutes and seconds can be comfortably and reliably recorded by mechanical means and where priority can be fine-tuned without any inconvenience.

Am I alone in this preference?

Louis Malette said...

I would translate as follow:

"In the current sate of the Union law, section 27 of the Regulation (EC) No 40/94 of the Concil (or Board) of December 20th, 1993, on the community (trade) mark, excludes that it be taken into account, beyond the date of filing of the community (trade) mark, also the hour and the minute of said filing."

Please note that the French text, like most legal text, even English ones, lack clarity by the formal incised structure used.

Louis Malette

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