Brexit: Impact on European Patents, Trademarks and Designs

Union-JackOn June 23, 2016, a referendum will be held in Britain to decide whether or not Britain should leave or remain in the European Union (EU). In the event of a majority voting for a “leave” (“Brexit“, a portmanteau combining the words “Britain” and “exit”) Britain will leave the European Union in accordance with Art. 50 (2) Treaty on European Union within a time period of two years.

A Brexit would have considerable consequences for the harmonization process of European intellectual property right. The main effects and implications of a Brexit may be summarized as follows:

1. Trademark and Design Law

The Council Regulation (EC) No. 207/2009, the EU regulation that govern the European Union trademark (EU trademark), would cease to have effect in Britain in case of a Brexit. Proprietors and applicants of EU trademarks would have to convert their EU trademarks into national trademarks by way of a conversion under Art. 112 to 114 of the regulation. Alternatively, they may choose to let their trademark right in Britain become abandoned.

Similarly, the Council Regulation (EC) No. 6/2002, the EU regulation that govern the community designs (RCD), would cease to have effect in Britain. However, in contrast to the case of EU trademarks the regulation (EC) No. 6/2002 does not provide an option for a voluntary conversation of a community design into a national design, so that it is questionable whether and if so, how, the protection of a registered community design may be maintained in Britain in case of a Brexit.

Moreover, Britain could no longer be designated in a community trademark application and in an application for a registered community design.

2. Patent Law

A unitary patent (European  patent with unitary effect, EPUE) issued by the European Patent Office would have no effect in Britain after a Brexit. For the establishment of the Unified Patent Court (UPC) two scenarios are possible. First, the UPC may be established without Britain. The Court of First Instance will have no thematic section in London. However, the thematic section of the Court of First Instance could be built up in a different city. Second, the road map for the establishment of the UPC may be hindered or delayed in case of a Brexit.

For the establishment of the UPC, it is necessary that out of 25 participating countries at least 13 countries ratify the convention, including France, Germany and Britain as the three countries with the most European patent validations in 2012. Since Italy was the country with the fourth highest number of European patents, Italy would move up to the position of the three sine-qua-none participating countries. However, Italy has so far made no effort in the implementation of the convention into national law. An addendum to the convention would therefore be required. It is very likely, that the road map for the establishment of the UPC will be delayed in case of a Brexit.

For European patents and European patent applications without unitary effect, a Brexit would have no impact, since Britain would remain a member state of the European Patent Convention (EPC).

3. Impact on Patent and Trademark License Agreements

Existing patent and trademark license agreements should be checked for a possible impact of a Brexit. If an “accidental” change of the license area is not explicitly regulated in an agreement, the will of the parties would have to be determined by supplementary interpretation of the agreement.

Similar considerations apply to trademark delimitation agreements and related agreements.

4. Impact on the Exhaustion of IP Rights

If the British citizens voted for a Brexit, existing pan-European exhaustion regimes may have to be modified.

Under current law, IP rights are exhausted once goods are put on the market within the territory of the EU or the European Economic Area (EEA) with the owner`s consent. After a Brexit, however, a patent proprietor may once again have the possiblity to prohibit the import from Britain to Europe or from Europe to Britian of goods marked with a trademark or protected by a patent.

For reasons of grandfathering, IP rights that have already been exhausted should continue to be exhausted even after a Brexit. However, for non-exhausted rights the legal situation may be different.

5. Necessity to Introduce Transitional Arrangements

In the interests of patent and trademark proprietors, comprehensive transitional arrangements should be worked out by European and British legislators in a timely manner, in order to ensure that existing and future property rights will not cease to have effect in and for Britain in case of a Brexit.

It is highly recommended for applicants of trademarks and designs to apply for national trademarks and designs in Britain in parallel to filing EU applications at least until transitional arrangements are entering into force.

Other procedural changes are of secondary importance for the proprietor of IP rights. After a Brexit, Britain would have no representatives in the European Parliament or in the European Council. Moreover, no British judge would contribute to EU law in the Court of Justice of the European Union (CJEU). The established and future EU legislation and case law would inevitably be affected by a Brexit.

6. Our Opinion

In our view, it would be desirable and in the interests of applicants and proprietors of IP rights if comprehensive transitional arrangements were negotiated by the European and British legislators in case of a Brexit, in order to enhance the legal certainty for all market participants. A delay or a refusal of such negotiations by the EU – with the open or hidden intention to make a deterring example of a country daring to choose to exit the EU – would be counterproductive.

Existing rules of the European Economic Area (EEA), the European Free Trade Association (EFTA) and the World Trade Organization (WTO) may be used for this purpose and, if necessary, adapted to the situation, as already proposed in an interview by the former British Foreign Secretary Lord David Owen.

Update (June 24, 2016): Britain has voted to leave the EU.

Foto: © Christina Saint Marche, [CC BY-NC-ND 2.0]

Posted in Design Law, European Law, International Law, Patent Law, Trademark Law | Tagged , , , , , | Leave a comment

OHIM: New Office Name and EU Trade Mark Regulation

EU trade mark regulation
The Office for Harmonisation in the Internal Marke (OHIM) announced in a recent press release that the Regulation (EU) No. 2015/2424 of the European Parliament and the Council (EU trade mark regulation) dated December 16, 2015 will enter into force on March 23, 2016.

For applicants and owners of registered community trademarks the following changes should be noted.

1. Re-Branding of the OHIM

As from March 23, 2016, the OHIM will re-brand itself to „European Union Intellectual Property Office (EUIPO)“. From the same date, a community trademark (CTM) will be called “European Union trademark” (EUTM).

The office’s email addresses will also change. The new email addresses will have the format: name.firstname@euipo.europa.eu. The office’s website will be updated to reflect the new name. The new domain name will be: www.euipo.europa.eu.

2. New Fee Structure

The fee system under the EUIPO will replace the current fee system of the OHIM. The filing, maintenance, litigation and appeal fees will all be changed.

2.1 Filing Fees for EU Trademarks

The basic filing fee for EU trademarks will cover only one class instead of three classes, as it is presently the case. In other words, additional class fees will have to be paid for any EU trademark application covering goods and services of more than one class (Nice classification). The fees are summarized in the following table.

number of classes current fee
(online filing)
new fee
(online filing)
1 class 900 EUR 850 EUR
2 classes 900 EUR 900 EUR
3 classes 900 EUR 1.050 EUR
each additional class 150 EUR 150 EUR

2.2 Fees for the Renewal of EU Trademarks

The renewal fees for EU trademarks will be lowered and will now correspond to the filing and class fees. The renewal fees for EU trademarks are summarized in the table below.

number of classes current fee new fee
1 class 1.350 EUR 850 EUR
2 classes 1.350 EUR 900 EUR
3 classes 1.350 EUR 1.050 EUR
each additional class 400 EUR 150 EUR

In contrast to the present system, the renewal of any EU trademark will have to be requested on the renewal date rather than at the end of the month of a possible renewal, in accordance with Art. 47 (3) EU trademark regulation.

Example: a EU trademark with a filing date of April 15, 2016 must be renewed and the renewal fee must be paid on or before April 15, 2026 (Friday).

If the renewal of a EU trademark is not requested within the normal due date, the trademark can still be validly renewed, if an additional late payment fee is paid together with the basic fee. The time limit for requesting renewal of the trademark and pay the late payment fee and basic renewal fee will end 6 months from the date of the normal time limit.

2.3 Fees in Relation to EU Trademarks

The process fees for opposition, nullification and appeal proceedings are lowered, as will be apparent from the table below.

procedure current fee new fee
opposition 350 EUR 320 EUR
nullification 700 EUR 630 EUR
appeal 800 EUR 720 EUR

3. Introduction of EU Certification Marks

On September 23, 2017, a new type of trademarks will be introducted at the EUIPO: the so-called “EU certification mark”.

The certification mark will allow a certifying institution or organisation to permit adherents to the certification system to use the mark as a sign for goods or services complying with certification requirements. Thus type of trademark will only be available to members of the organisation, which ensures that the quality standards are observed. For this reason, the applicant of an EU certification mark must file together with the application documents the regulations of the organisation which set out a number of matters.

4. Introduction of New Types of Trademarks

Starting from October 1, 2017, the registration of new types of trademarks will be easier. The EU trade mark regulation will remove the requirement of graphical representation. New types of non-traditional trademarks, such as holograms or motion trademarks, will in principle be registrable as EU trademarks.

It is still unknown, how the new types of trademarks may be non-graphically represented in each case.

5. Possible Seizure of Goods in Transit within the EU

In a measure to help in the battle against counterfeiting, the EU trade mark regulation intends to make it easier for trademark owners to seize counterfeit goods in transit within the European Union.

The owners of EU trademarks will be entitled to seize and destroy goods in transit within the EU that are illegally marked with their trademarks, unless the goods can be lawfully put on sale in the country of final destination. In other words, the seizure may be prevented by the potential trademark infringer, if he can prove that he is allowed to bring into the market the goods marked with the trademark in the country of final destination.

6. Interpretation of the Goods and Services of a EU trademark

The European Court has previously ruled in its decision “IP Translator” (C-307/10) that the protection provided by a trademark covering the class headings of the Nice Classification is limited to the literal meaning of the terms. With entering into force of the EU trade mark regulation, it is now implemented law that in accordance with the WYSIWYG (abbreviation for “what you see is what you get”) approach the descriptions of goods and services will be interpreted strictly such that class heading language will no longer be construed as covering all goods or services in the class.

This principle as codified in Sect. 28 (5) of the EU Trade Mark Regulation Union will not only be applicable to the newly filed EU trademarks, but also for all registered trademarks and pending trademark applications. Since the application of the new law may in principle constitute a loss of legal rights for all those old cases, the EU Trade Mark Regulation provides for a transitional regime for the trademarks registered prior to June 22, 2012. The owners of these trademarks may declare whether the selected class headings should protect all other goods and services within the class and extend protection to those goods and services. The time limit for submitting the declaration to the EUIPO will expire on September 24, 2016.

However, this option only applies to those cases, wherein the terms cannot be subsumed under the verbatim of the claimed class headings. The goods and services to be claimed in the declaration must be selected from the alphabetical list of terms according to the Nice Classification as valid at the time of filing the trademark.

7. Comments

In our view, the procedural and substantive changes that are introduced by the EU trade mark regulation are to be welcomed. The reduction of the renewal fees for EU trademarks might reduce the number of double registration of trademarks by the same applicants.

With respect to the WYSIWYG approach for interpreting the scope of protection of a trademark now applicable under the EU trade mark regulation, applicants for and owners of EU trademarks should check their portfolios for trademarks, for which action is required prior to the expiry of the time limit of September 24, 2016. If necessary, a declaration should be filed with the EUIPO that the trademark should be extended to the desired (missing) goods and services.

Foto: © MPD01605, [CC BY-SA 2.0]

Posted in European Law, International Law, Trademark Law | Tagged , , , , , , , , , | 3 Comments

Artur Fischer: One of the Greatest Inventors of all Times Died at Age of 96

Artur FischerAs Spiegel Online reported today, inventor Artur Fischer died on  January 27, 2016 at the age of 96. This is very sad news as Artur Fischer was arguably the greatest innovator and one of the greatest businessmen of post-war Germany. Among a large number of useful things, he invented the synchronous flash for photography (registered as a patent already in 1949), the famous Fischer Dowel (“S Plug” (Split-) wallplug made from plastic materials, “Dübel” in German) and the Fischertechnik Construction Kits with which many nerds grew up, including the famous C64 Fischer Robotics Kit of the 1980s. Further inventions of Artur Fischer were innovative bone plugs for fixing bone fractures and biodegradable and edible children’s toys from potato starch.

Fischer received the Order of Merit of the Federal Republic of Germany in 1999 and was honored by the European Patent Office in 2014 for his life’s work (picture above).

His heritage includes an impressive portfolio of over 1,100 patents. He even overtook Thomas Alva Edison, who held  “only” 1,093 patents, and reportedly remained inventive and interested in solving technical problems until the very end.

Foto: © European Patent Office European Inventor Award, [CC BY-NC-ND 2.0]

Posted in Patent Law | Tagged , | 1 Comment

Moldova: Validation Agreement Enters into Force

flag MoldovaThe European Patent Office (EPO) announced in a recent press release that the agreement on the validation of European patents between the EPO and the Republic of Moldova has entered into force on November 1, 2015. With the recognition of the EPC, the Republic of Moldova followed Morocco to become the second country which is not a member of the European Patent Organization but gives the same legal effects to a European patent as a national patent on its territory.

With the entry into force of the agreement, it is thus possible to obtain patent protection in the Republic of Moldova by having a European patent granted by the European Patent Office. A national granting procedure in the Republic of Moldova is no longer necessary. However, in order to validate the European patent in the Republic of Moldova, the payment of a so-called validation fee is necessary. The amount of the fee is currently EUR 200 and the due date for paying the validation fee expires 6 months starting from the notice of the publication of the European search report. For Euro-PCT applications the validation fee will be due at the time for entering of the application into the European phase before the EPO.

For the validation of the granted European patent in the Republic of Moldova, a translation into Moldovan of the description, claims and figures of the European patent has to be filed with the State Agency on Intellectual Property of the Republic of Moldova. Both, the translation and a publication fee are due within three months of the date on which the mention of the grant of the European patent is published.

Taking into account the current EPC contracting states, validation and extension states, including the Republic of Moldova, a European patent can now provide patent protection in a total of 42 European and non-European countries.

Foto: © Maxence, [CC BY 2.0]

Posted in European Law, Patent Law | Tagged , , , , | 6 Comments

Merry Christmas and a Happy New Year!

We wish all our readers a Merry Christmas and a Happy New Year 2016!

Munich Christmas

Foto: © AlBakker, [CC BY-NC-ND 2.0]

Posted in Uncategorized | Comments Off on Merry Christmas and a Happy New Year!

Federal Supreme Court Confirms Nivea Blue

NiveaBeiersdorf AG, manufacturer of Nivea, won a ruling from Germany’s Federal Supreme Court (BGH) that gives it a second chance to defend its trademark for the blue color on its Nivea products in a legal battle with Unilever NV (court case number: I ZB 65/13). On July 9, 2015, the BGH ordered a reopening of the proceedings before the German Federal Patent Court (BPatG).

The suit is part of an long-standing legal battle between the two DAX listed companies over their dark blue colors (Panthone 280 C) used in the Dove and Nivea brands.

“Since 1925, the color Blue stands for the trademark values of Nivea. The blue tin is the ‘face’ of the brand and the basis of the global design language of the Nivea products,” said Inken Hollmann-Peters, Vice President Corporate Communications & Sustainabilitya at Beiersdorf. “That’s why we leave nothing untried to protect the iconic color image.”

In the preceding instance, the BPatG had applied a strict standard, deciding that an abstract color trademark can only be registered or maintained as a registered trademark, if 75 percent of the relevant consumers associate the color with the trademark. The Nivea Blue trademark did not fulfill this strict criterium. However, according to the BGH the threshold must now be lowered to a more moderate 50 percent.

Dr. Wolfgang Büscher, chairman of a panel of five judges at the highest civil court, said one issue at trial was whether “the federal patent court set a standard that is too strict.”

Beiersdorf said it welcomed the decision as it regards the color as a trademark and not only as a decorative background.

The number of law suits over abstract colors are currently on the rise. Mondelez International Inc. and Nestlé SA are fighting over a trademark for the color “purple”, which is used by Mondelez for the packaging of Cadbury’s Dairy Milk bars. Moreover, the BPatG recently ruled in a law suit brought by the Spanish bank Santander SA that a trademark for the color “red” owned by the German Association of Savings and Loans Banks (Deutsche Sparkassen- und Giroverband, DSGV) should be cancelled.

Update (May 10, 2016): The 25th Senate of the Federal Patent Office (BPatG) cancelled the trademark for the color “red” of the German Association of Savings and Loans Banks (BPatG, GRUR 2015, 796). An appeal was filed against this decision, so that the Federal Supreme Court will have the final words in this case (I ZB 52/15).

Foto: Beiersdorf

Posted in German law, Trademark Law | Tagged , , | Leave a comment

Filing a Trademark Application in Canada: Characteristics of the Canadian Trademark Law

Trademark application in CanadaThe registration process of a trademark in Canada is in some ways extraodinary when compared to the registration practices in other countries.

The most important characteristics of the Canadian trademark registration process are summarized below.

1. No Madrid Protocol

Canada belongs to a only a handful of industrialized countries in the world, which have neither joined the Madrid Agreement (Agreement) nor the Protocol of the Madrid Agreement (Madrid Protocol), as discussed elsewhere.

However, since Canada has signed the Paris Convention (PC), the priority of a foreign trademark application can be validly claimed in a Canadian trademark application. Moreover, the applicant can claim the priority of the trademark application in Canada in a foreign trademark filing. A prerequesite of the validity of the priority claim is that the signs and the goods and services of the first and subsequent trademark applications are essentially identical.

2. Obligation to Use the Trademark

Before a trademark can be registered in Canada, the applicant of the trademark must generally use the trademark in Canada. The application may be filed on the basis of a proposed use in Canada or, if the trademark is already used in a a foreign country (use abroad) on the basis of a registered trademark in the country of origin of the applicant. Furthermore, a trademark application may be filed for a mark, which is not yet used in Canada, but has nevertheless become known to the public in Canada.

3. No Classification of Goods and Services

In Canada, the goods and services claimed are not classified according to Nice classification. The trademark application must only provide a list of goods (Canadian engl. “wares“) and services for which protection is sought. No class fee is charged at the CIPO. However, it should be made sure that the claimed goods and services are used in Canada or that the use of the trademark for the goods and services is at least intended by the applicant (see item 2).

4. Declaration of Use

If the trademark application in Canada is filed on the basis of a proposed use, a declaration of use must be filed with the CIPO. In this declaration, the date of the first use of the trademark in Canada must be provided for each of the claimed goods and services. The time limit for filing this declaration can be extended up to three times.

5. Filing a Certificate of Registration

If the trademark application in Canada is filed on the basis of a foreign registration, a trademark certificate must be filed with the trademark office in Canada. If the trademark certificate is not written in English language, a translation thereof into English language must be provided.

6. End of the Grace Period of Non-use

After expiry of a time limit of three years from the registration of the trademark in Canada, any third party may request that the applicant provides documentary proof of the use of the trademark. If such a request is filed by a third party, it is necessary to proof the use of the trademark in Canada for each good and service claimed in the application. If no proof of the use can be provided, the trademark will be partially or fully cancelled.

7. Prohibited Trademarks

In Canada, some kind of signs are excluded from trademark protection. A simple word, which is predominantely a given name or family name of a person, cannot be protected by a trademark. An exception can be made, if the person whos name should be registered as a trademark has died more than 30 years before the trademark application is filed. Also, as in other countries descriptive or non-distinctive signs cannot be protected by trademarks. The CIPO will assume that the relevant consumers are familiar with both, the English and French languages.

8. Power of Attorneys

Although it is not required by law to submit a signed power of attorney, the CIPO can request at any time to provide proof that the representative having filed the application in the name of the applicant is authorized by the applicant.

9. Registration Procedure

The examination of the tradmark is generally carried out within a time frame of 4 to 8 months after filing the application. The total registration process can typically be completed within a time frame of  18 to 24 months from filing the application.

After the publication of the registration third parties can file oppositions against the registered trademark.

10. Renewal of Trademarks

In Canada, the normal term of protection expires 15 years after registration of the trademark. The registered trademark may be renewed every 15 years.

A registered trademark may at any time be cancelled for non-use, if requested by a third party (see item 6).

Foto: © Jamie McCaffrey, [CC BY 2.0]

Posted in International Law, Trademark Law | Tagged , | Leave a comment

Greece: Implications of the Capital Controls and the Referendum for the Proprietors of IP Rights in Greece

Current Effects of the Capital Controls in GreeceOn 28 June, the Greek Government imposed capital controls in the latest development in the country’s financial crisis. The capital controls will considerably restrict the flow of capital within the Greek banking sector and will be maintained at least until July 6, 2015, maybe even longer.

For applicants or proprietors of industrial property (IP) rights in Greece, such as patents, trademarks, designs etc., the following implications can be expected.

Current Effects of the Capital Controls

1. Registered IP rights, including patents, trademarks, designs and SPCs, are in no jeopardy with regard to either their validity or their enforceability in Greece. The same applies to European patents which have already been validated in Greece, European patent applications designating Greece, Community trademarks or Community designs designating Greece or international trademark registrations extending to Greece.

2. Official fees, including those due for filing, validation, maintenance and any other type of official fees can still be validly paid to the Greek Patent Office, because payment orders via web banking are still allowed in accordance with the aforementioned decree.

Likewise, international bank transfers, including SEPA remittances, to (but not from) bank accounts of domestic IP agents in Greece will not be affected.

3. Court fees can still be paid without restrictions.

To sum up, even after the introduction of capital controls in Greece we do not expect that the restrictions will have serious adverse implications at least in the fields of ​​intellectual property law. In particular, we do not believe that the measures taken by the Greek government will jeopardize any IP rights registered or granted in Greece.

Future Effects of the Greek Referendum

At present it is still unclear what the result of the plebiscite (referendum) scheduled for July 5, 2015 will be and what conclusions could ultimately be drawn therefrom. From the perspective of the Greek government, the referendum will not yet decide whether or not Greece should stay in the euro area, though an involuntary exit of Greece (or Grexit) appears significantly more likely in case of a no-vote. A short-term solution to the debt problem seems unlikely under any circumstances.

Depending on the outcome of the referendum, the following possible scenarios are possible:

1. Maintenance of Capital Controls, With or Without Introduction of a Parallel Currency alongside the Euro

Before it is possible to grant a third aid program for Greece, a number of national parliaments in Europe will have a vote first. Therefore, it would seem likely that regardless of the outcome of the referendum on 5 July 2015, the capital controls already introduced need to be maintained. Since, the emergency liquidity assistance (ELA) credit line of the ECB is already exhausted, these measures cannot be canceled and are necessary for Greek banks to survive. It also seems unlikely that the ECB will increase the credit line, after the default of a payment to the IMF.

Even in the event that the Greek Government introduces a parallel currency alongside the Euro as a measure to increase the capacity to act, no differences are likely to arise as long as the euro is still accepted as a currency.

2. Exit of Greece from the Euro Area Only (Grexit Light), Introduction of a New Currency

Although it is still under discussion, whether or not a Member State of the European Union (EU) can leave the euro area and at the same time remain a member of the EU, this option would probably be preferred by most European governments, if Greece decided to abandon the Euro as its official currency (especially in the case of a no-vote). Another possibility would be a temporary exit of the EU for a short time period, whereby Greece could join the EU again under pre-defined conditions. The euro may then not be adopted as an official currency.

Compared to Scenario 1, no significant differences arise. Only the administrative and court fees would have to be paid in the newly created currency (for example a new Greek drachma).

3. Greek Exit from the Euro Area and from the European Union (Grexit)

If Greece should leave the euro area and the EU, it would have no immediate impact in the fields of intellectual property law. The European Patent Convention (EPC) is an international treaty, which is independent of the European Union. Numerous non-EU countries (e.g. Norway, Switzerland) are member states of the EPC, but not member states of the EU. In case of an exit of Greece from the EU, European patents can still be validated in Greece. A Greek exit from the EU will have no effect on existing IP rights in Greece.

Any pending or registered Community Trademarks (CTMs), or pending or registered Community designs (RCDs) can be converted to national rights. Therefore, if Greece should exit the EU, the pending or registered IP rights may be continued at a national level. In this case, a Greek national IP right can be registered parallel to the European IP right (effective for all other EU countries) by filing a request for conversion, while the filing date of the IP right remains intact. A loss of right is unlikely as long as the due date for filing the request for conversion is monitored and complied with.

Since no unitary patents, i.e. a European patent granted by the European Patent Office with unitary effect in the EU, have been granted, it is unclear whether a Greek exit from the EU will have an impact on the system of European unitary patents. However, with regard to the legal uncertainties related to the British referendum scheduled for 2017 (and a possible Brexit), as well as on a similar referendum pending in Austria, we tend to advise against make extensive use of the European unitary patent system, which appears even more advisable in view of the fact that the costs for maintaining unitary patents and for nullification and infringement proceedings are at present still unknown.

Foto: © Jochen Zick, action press, [CC BY-ND 2.0]

Posted in European Law, International Law, Patent Law | 1 Comment

The Struggles of Roma in Kosovo

Dr. Bernd Franke and Jacqueline Bhabha at Mitrovica Bridge

The author and Jacqueline Bhabha at the Mitrovica Bridge, which separates Albanians in the south from Serbians in the north of Kosovo.

In December 2014, local residents of Llaushë/Lauša village, in the city of Skenderaj in northern Kosovo, approached the Department of Forensic Medicine and reported a possible mass grave in the village cemetery. Four bodies had been buried there in the late nineties, during the Kosovo War, they said. In late April of this year, forensic experts from the European Union Rule of Law Mission in Kosovo (EULEX) exhumed the remains for further investigation.

Most of the time, the challenges faced by Roma people in Kosovo attract hardly any attention. But over the last several weeks the media have intensively questioned the exhumation. Some journalists have called it a “mistake,” claiming that the site is in fact not a mass grave, and that the remains had originally lain elsewhere and been reburied in 2002.

Media reports identify the remains as belonging to a Roma mother and two of her children, with one other person, who were killed on March 5, 1998, during the war, together with members of the prominent Albanian Jashari family. According to one report — which cited a resident of Llaushë — the bodies were first placed in a garage by Serbian forces following the end of military operations. The remains were then buried in the Jashari family cemetery with the slain family. After the war, because they were not members of the family, the bodies of the three Roma individuals were removed and reburied in the village cemetery, where they were found in December.

Missing the Point

The story in the media centers on EULEX’s involvement rather than on the Roma losses. The exhumation is discussed without questions or comment about the state-sponsored wrongs inflicted against Roma people in Kosovo. Prior, during, and in the aftermath of the war, and even after NATO deployment, there were reported killings of Roma, Ashkali, and Egyptians in the region. Suspecting the Roma and Ashkali for having collaborated with the Serbs during the war, extremists conducted horrific campaigns of ethnic cleansing.

Research on this period has recorded ethnically motivated murders of Roma throughout Kosovo. According to some sources, more than 100,000 Roma, Ashkali, and Egyptians were forced to flee the region due to massive violence. Of the 19,500 Roma houses that stood before 1999, 14,500 were destroyed at that time.

Fact finding missions have uncovered violations such as rape, torture, illegal detention, and destruction of property on a large scale. Renewed ethnically motivated clashes occurred in March 2004. Mass unrest, violence, and civil-war like conditions were directed mainly against ethnic minorities, resulting in the destruction of a further 700 homes; 4,000 Serbs, Roma, Ashkali, and Egyptians fled in panic and fear for their lives.

A Tenuous Future Course

Today, although the security situation has improved due to the commitment of the international community, the crimes committed against the Roma during this period have yet not been fully investigated and prosecuted. In many cases witnesses did not appear before the court, and delays and lenient sentences were widespread, in the years after 2004, specifically. Further judiciary responses, with a specific focus on crimes against ethnic minorities, are still necessary.

Measures have been taken to protect ethnic minorities in Kosovo, including the Roma, since the adoption of UN Security Council Resolution 1244 in 1999 and due to the continued presence of the international community. This is encouraging. The European Union has recently funded a large housing project for Roma in Mitrovica in Northern Kosovo, while a number of NGOs have focused on providing medical and educational assistance. Finally, with four seats in the national assembly, Roma, Ashkali, and Egyptian representatives can in theory take part in the political decision-making of Europe’s youngest country.

However, despite these advancements, much remains to be done. As noted by the Head of the OSCE Mission in Kosovo on the occasion of this year’s International Roma Day, Kosovo’s Roma population continues to suffer the effects of discrimination, limited access to education, high unemployment, and other persistent forms of marginalization. It remains to be seen whether the country is able to create a sustainable climate which can provide Roma people with a secure home, a tolerant society, and strong prospects for the future.

Posted in European Law, International Law | Tagged , , , , | Leave a comment

Rubik’s Cube Confirmed as a 3D Trademark in Europe

RubikInvented in the 1970s, the Rubik’s Cube fascinates people around the globe and is one of the world’s best-selling toys. While many fans found the magic cube a hard nut to crack, a German toy manufacturer has challenged the registered trademark for the 3-dimensional shape of the cube before the General Court (European Union). The Court has now decided that the trademark registration cannot be denied.

In 1999, the British toy manufacturer Seven Towns, which manages the IP rights relating to the Rubik’s Cube, filed a Community trademark (CTM) application for the three-dimensional trademark (3D or three-dimensional trademark) with the Office for Harmonization in the Internal Market (OHIM) in Alicante.

In 2006, Simba Toys, a German company competing with Seven Towns Simba Toys, filed a request for a declaration of invalidity of the trademark on the grounds that the trademark merely involves a technical solution consisting of its rotating capability, thereby lacking the necessary distinctiveness. Simba argued that a technical solution can essentially only be protected by patents, but is not accessible to trademark protection.

The OHIM rejected the cancellation request, thereby causing Simba Toys to file an appeal against the decision with the General Court (EGC) in Luxembourg. However, according to a recent press release of the EGC this appeal was now dismissed (decision of November 25, 2014, case number: T-450/09).

The EGC noted that the essential features of the contested trademark are the shape of the mark on the one hand and the black lines on the sides making up part of the structure and dividing the grip into squares on the other hand. These two elements are clearly visible in the graphic representation of the trademark, which is required under Art. 4 CTMR. Consequently, the trademark can be protected as a CTM because it can be represented graphically and is also able to distinguish the goods or services of one party from those of other parties.

In the proceedings Simba Toys suggested that the relevant public will perceive the black lines as serving the function of dividing the cube into individual elements and serving a technical function because they enable the elements to be moved around. But the court did also not follow this argumentation. According to the court it is not the black lines or the grid that allows a movement of the elements, but the invisible rotating mechanism inside the Rubik’s cube. Therefore, the trademark cannot be denied registration as a CTM on this basis.

With regard to the requisite distinctive character of the mark it is the cubic grid structure which clearly differs in the contested trademark and the representation of other three-dimensional puzzles on the market. Therefore, the structure has a distinctive character which enables consumers to see the structure as an indication of the origin of the products.

Within a time limit of two months Simba Toys may still file an appeal against the decision of the EGC. The case would then be reviewed once more by the European Court of Justice (ECJ).

Conclusion:

Contrary to popular belief, trademark protection is not limited to word or figurative marks, but can also extend to other types of marks, such as 3D marks. A trademark directed to the shape of the product may under certain preconditions supplement the patent protection. A flanking protection by a trademark might have an economic impact because patent protection only lasts 20 years, whereas trademark protection may be extended indefinitely as long as the maintenance fees are duly paid.

Foto: © Sonny Abesamis, [CC BY 2.0]

Posted in European Law, International Law, Trademark Law | Tagged , , , , , , , , , | 1 Comment