Here’s a summer Court of First Instance (CFI) order for all you procedure-junkies out there. Kerry applied to register a CTM in 1997. Gerolsteiner opposed the application in 1998 but its opposition was rejected by the OHIM Opoosition Division in 2002 and subsequently by the Board of Appeal in January 2003. In February 2003 Gerolsteiner appealed to the CFI. However, in December 2003, Gerolsteiner informed the CFI that it had transferred the trade mark on which the opposition was based to Sinziger Mineralbrunnen and that Sinziger Mineralbrunnen wished to be substituted for Gerolsteiner in the dispute before the CFI. OHIM, Kerry and Gerolsteiner were consulted. None of them had objections to the substitution taking place.
The CFI authorised the substitution of Sinziger for Gerolsteiner:
*Where an intellectual property right which is the subject of a dispute is transferred, the new owner, claiming through the original owner which is party to the dispute, may be authorised by the CFI to have itself substituted for the original owner. However, this substitution can only take place where the original owner of the IP right has no objection and the CFI, after hearing the other parties to the dispute, considers that the substitution is appropriate.
*Since there is no provision in the Statute of the Court of Justice or the Rules of Procedure of the Court of First Instance expressly governing the substitution of one party for another, the provisions of Arts.115 and 116 of the CTM Regulation apply by analogy. This means in particular that the party new owner of the IP right must accept the dispute in the state that it is in at the time of the substitution.
*Here the original owner of the IP right, Gerolsteiner Brunnen, declared its agreement with the substitution and neither OHIM nor the intervener (Kerry, the applicant for the CTM that Gerolsteiner was opposing) had raised any objections. Therefore the substitution was authorised.
The IPKat says that this way of doing things makes sense. If all the parties to the dispute agree, then it seems that no one loses out by the CFI allowing the substation.
More half-time substitutions here, here and here
The CFI authorised the substitution of Sinziger for Gerolsteiner:
*Where an intellectual property right which is the subject of a dispute is transferred, the new owner, claiming through the original owner which is party to the dispute, may be authorised by the CFI to have itself substituted for the original owner. However, this substitution can only take place where the original owner of the IP right has no objection and the CFI, after hearing the other parties to the dispute, considers that the substitution is appropriate.
*Since there is no provision in the Statute of the Court of Justice or the Rules of Procedure of the Court of First Instance expressly governing the substitution of one party for another, the provisions of Arts.115 and 116 of the CTM Regulation apply by analogy. This means in particular that the party new owner of the IP right must accept the dispute in the state that it is in at the time of the substitution.
*Here the original owner of the IP right, Gerolsteiner Brunnen, declared its agreement with the substitution and neither OHIM nor the intervener (Kerry, the applicant for the CTM that Gerolsteiner was opposing) had raised any objections. Therefore the substitution was authorised.
The IPKat says that this way of doing things makes sense. If all the parties to the dispute agree, then it seems that no one loses out by the CFI allowing the substation.
More half-time substitutions here, here and here
CFI ALLOWS SUBSTITUTION
![CFI ALLOWS SUBSTITUTION]()
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Tuesday, September 07, 2004
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