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.

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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]

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Morocco: Validation Agreement Enters into Force

MarokkoThe European Patent Office (EPO) has announced in a recent press release that the agreement on the validation of European patents between the EPO and Morocco will enter into force on March 1, 2015. With the recognition of the EPC, Morocco has become the first country which is not a member of the European Patent Organisation 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 Morocco by having a European patent granted by the European Patent Office. A national granting procedure in Morocco is no longer necessary. However, in order to validate the European patent in Morocco, the payment of a so-called validation fee is necessary. The due date for paying the validation fee is the same as the due date for the payment of the fees for extending the European patent to any extension states (currently Montenegro and Bosnia and Herzegovina), i.e. the time limit is 6 months 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.

Taking into account the current EPC contracting states and extension states, including Morocco, a European patent can now provide patent protection in a total of 41 European and non-European countries.

Comments:

Since 2010, the EPO has signed validation agreements with three non-EPC member states (see table below).

It can be expected that validation agreements will be concluded with further non-European countries.

Country: Agreement: Signature date: Time of entry into force:
Morocco (MA) Agreement between the Government of the Kingdom of Morocco and the European Patent Organisation on validation of European patents December 17, 2010 March 1, 2015
Republic of Moldova (MD) Agreement between the Government of the Republic of Moldova and the European Patent Organisation on validation of European patents October 16, 2013 November 1, 2015
Tunisia (TN) Agreement between the Government of the Republic of Tunisia and the European Patent Organisation on Validation of European patents July 3, 2014

Last time this table was updated: January 15, 2016.

Foto: © weisserstier, [CC BY 2.0]

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Interview: Incentives to Innovate

Muster_12Interview with Dr. Dirk Franke. The following topics are covered: the future of the profession of a European patent attorney, patent litigation costs, trivial patents; how to find a qualified patent attorney, EU patent (unitary patent), changes in the European patent system over the next 15 to 25 years

Summary of Interview (pdf, in German)

Published on Dec. 15, 2014 | Source: Akademische Blätter, issue IV/2014

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Merry Christmas and a Happy New Year!

We wish all our readers a Merry Christmas and a Happy New Year 2015!

Weihnachtsmarkt

Foto: © Ashwin Chandrasekaran, [CC BY 2.0]

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OHIM: New Fake Invoices Resemble Official Communications

OHIM new websiteApplicants for European community trademarks (CTM applications) are currently receiving fake invoices from a British service provider called “OMIH – Trademarks and Designs Registration Office”.

The fine print of the fake invoices mentions that the message is only an offer, but not an invoice. This means that the recipient of the message has no obligation to pay. This information is, however, hardly legible or even noticable. The overall appearance of the invoices resembles the standard communications sent out by the OHIM. Also the reference numbers mentioned in the invoices are identical to the reference numbers mentioned in the official register.

It is quite amazing that at least some applicants for European community trademarks still fall prey to this kind of fraud. If an applicant is legally represented before the OHIM by an appointed OHIM professional representative he will never receive any official communications directly from the office. The OHIM will alway contact the applicant’s representative who is acting on behalf of his client.

Moreover, the OHIM will never send out any “invoices” asking to pay official fees.

Update 1 (August 2, 2014): According to our information, at least the following two different bank accounts are currently used by “OMIH”:

  1. Account No. SE34 6000 000 0001 1080 7588, BIC: HANDSESS (SVENSKA HANDELSBANKEN, Stockholm)
  2. Account No. SE83 8000 0832 7990 3910 4279, BIC: SWEDSESS (Swedbank AB, Stockholm)
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New Common Trademark Practice: New Strategies Required for Filing Trademarks in Europe

color trademarksFurther to our recent article on the changes of the common practice of several European trademark offices (including the OHIM, GPTO, etc.) on the treatment of colored trademarks we will now explain how the decisions will in our opinion change the practice of trademark filings in Europe.

Until now, it was usual practice in Europe to file trademark applications in black and white or in grayscale in order to obtain the best possible scope of protection for the trademark. A trademark filed in black and white or in grayscale could protect the mark in all possible color variations.

However, the recent announcements of the OHIM suggest that in future trademarks that are filed in black and white or in grayscale will only provide protection for marks wherein the color changes are so small and insignificant that the differences will go noticed by the public. Our Example 1 illustrates two trademarks wherein the identity might possibly be still acknowledged under the new practice (in the absence of any available court decisions, we reserve the rights of being wrong in our assessments):

Example 1: Trademarks with only insignificant differences of the color, which will not be recognized by the public.

However, in the following cases (Examples 2-4) we consider the differences as being not minor and significant, so that the trademarks might be considered being different from each other. This means that the use of the colored trademarks will no longer protect the corresponding trademarks registered in black and white or in greyscale.

colored trademarks

Example 2: Trademarks which are only used in black and white or in greyscale will not protect trademarks filed in color.

Colored tradmarks

Example 3: Different colors used in the trademarks will be noticed by the relevant public. Within the European trademark system these trademarks will be considered being different from each other.

In view of the above new practice, we can no longer advise our clients to submit trademarks in black and white or in grayscale, if they want to use their trademarks only in color. An application for a trademark in black and white or in grayscale will apparently no longer provide protection for the signs in all color variations.

Taking into account all circumstances of the individual case, it appears important already at the time point of filing the trademark application to make a decision on how the trademark should be used in future, in order to make sure that the form in use is identical to the trademark to be registered.

The owners of trademarks which are already registered in black and white or in greyscale should consider filing additional trademark applications for their marks in color, if they previoulsy used their trademarks only in color or if they consider using the colored version in future.

Picture (top): © Jonas Tana, [CC BY-NC-ND 2.0]; picture (bottom): © Marco Braun, [CC BY 2.0]

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OHIM: Color Check for Black and White Trademarks

OHIM changes view on black-white trademarksThe Office for Harmonization in the Internal Market (OHIM) recently announced a new common practice for trademarks registered in black and white or in grayscale in Europe. Under the new practice, the OHIM will no longer treat trademarks filed in black and white or grayscale (in the following black and white trademarks) as if the mark covers all color variations. The changes may have undesirable legal consequences for some trademark owners:  some black and white trademarks that are currently only used in color, might be nullified before the trademark office in Europe. In the light of the changes, trademark owners should analyze their portfolios and should question whether or not the registered trademarks still provide sufficient protection against competitors.

The new common practice was made public in a recent online publication of the OHIM and will be applied at this office and some national trademark offices in Europe (with the exception of the trademark offices of Sweden, Denmark and Norway).

A trademark filed in black and white or grayscale is only considered to be identical to a colored mark if the differences are so insignificant that they would not be noticed by the relevant public. An insignificant difference will be assumed, if the average consumer would notice the difference only upon side by side examination of the trademarks.

The change in practice will have implications for priority claims, in opposition proceedings and with regard to the question of use preserving the right to use the trademark. According to the OHIM’s announcement, infringement issues remain unaffected. Also, the practice will not affect the use of marks in color for the purposes of acquired distinctiveness, the assessment of similarities of colors and the colors marks per se.

1. Priority Claims

A black and white trademark will only be considered identical to a colored mark or trade mark application, the priority of which is claimed, if the differences are so insignificant that they would not be noticed by the public. This will be an exceptional situation in practice, because the public will usually notice even small differences between trademarks filed in black and white or grayscale and their colored counterparts.

2. Oppositions

Similarly, when assessing the similarity of black and white marks and a colored version of the same sign, the test in opposition proceedings before the OHIM will be, whether the differences are so insignificant that they would not be noticed by the public. Also in this situation the assessment will be based on the perception of the average consumer.

It should be noted that even in cases where the characters are not identical the trademarks could still be considered similar by the opposition divisions. Similarity between the signs may also give rise to a likelihood of confusion of the marks. Nonetheless, the change in practice will at least in the practice before the trademark offices result in a narrower scope of protection for black and white marks.

3. Use

Under the current law, the use of a trademark in a different form than the registered form is sufficient, provided that the distinctive character of the mark is not altered. Under the new common practice, a change in color in itself does not change the distinctive character of a trademark registered in black-white for the purpose of use, provided that:

  • The word / figurative elements are the same and are the main distinctive elements;
  • The contrast of shades is respected;
  • The color or combination of colors does not have distinctive character in itself; and
  • Color is not one of the main contributors of the overall distinctiveness of the sign.

According to our preliminary assessment, black and white trademarks that had been registered for more than 5 years are now exposed to an increased risk of being revoked due to non-use, if a use of the sign can only be substantiated by the proprietor for the colored version of the sign.

Foto: © fotomek – Fotolia.com

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Ireland: London Agreement Enters into Force

Ireland: London Agreement enters into force on March 1, 2014With Ireland already having deposited on November 25, 2012 the instrument of accession to the London Agreement, the new legislation will formally enter into force in Ireland on March 1, 2014.

Ireland had already signed into effect national laws in order to faciliate the transition to the London Agreement. Since 2012, applicants are no longer required to file translations into English of the specification of European patents that have been granted in French or German language. With the formal accession to the club of member states of the London Agreement, Ireland has now set a new course for a modern and simplified language regime applicable for any European patents to be validated in this country.

Foto: © James Jordan, [CC BY-ND 2.0]

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EPO: Abandonment of Established and Efficient Safety Mechanisms for Users

European Patent Office has a certain affinity to gold

This week we received an official notification of the European Patent Office (EPO) along with the regular statement of our deposit account of 10 February 2014 with the headline “abolishment of the administration fee in case of insufficient cover of account” which at first seemed unusual to us.

Please find a copy of the official notification here.

The headline seems unusual because the EPO, which is sometimes jokingly referred to as the most expensive patent office in the world, is not normally known for a policy of reducing or abandoning any official fees. After a detailed examination of the official notification the above-mentioned “abolishment of the administration fee” turns out to be nothing else than an increase in official fees. This only comes into force when there are insufficient funds in the deposit account of a user.

Up to now, if there were insufficient funds in the deposit account on the day the debit order for a deposit of fees had been received by the EPO, the applicant could still deposit the missing amount within one month after the receipt of an official notification, in which the applicant was informed about the insufficient funds in his account. This had the consequence that the negative legal effects for the non-deposit have not occurred (see items 6.5, 6.6, and 6.7 of the Arrangements for deposit accounts (ADA)).

This was a safety net for users as they still had at least one opportunity to pay the missing amount and balance the overdraft although they did not have enough coverage of their deposit accounts.

The administration fee was moderate with 30% of the missing amount (according to EPO standards).

However, both this generosity and the safety net will be abolished on 1 April 2014. As the reader of the official communication will be informed in a short explanation in parentheses further down the text, there will be no possibility anymore to backdate the time of depositing the fees in the future.

important information

As a result, a loss of rights immediately occurs if there are insufficient funds in the account.

We cannot help feeling that by amending the user-friendly present regulation, the EPO intends to force the applicant into filing a request for a reestablishment of rights resulting in much higher administration fees of at least €580.00. The reply of the EPO to our general enquiry of 20 February 2014 concerning the purpose of these new provisions, however, seems to indicate this kind of motivation.

The EPO is obviously not being aware of or is at least accepting that a reestablishment of rights is a legal remedy which will typically not be available for the professional representatives before the EPO (meaning the law firms). Insufficient funds in the account at maturity of the administration fee are probably difficult to be argued in the context of the “all due care required by the circumstances” criteria, as the EPO believe that they have, at the same time, improved the possibility of an online account tracking (see notification of 10 February 2014 as well as reply of 20 February 2014).

In order to avoid the loss of rights after the new provisions will have come to effect we recommend the following measures:

  1.  Ensure that your deposit account has enough coverage to be prepared for all eventualities that may come up – this should be possible in a time of historic low interest rates. However, this strategy may become very expensive if inflation increases (or a soaring inflation).
  2. Set up a detailed liquidity plan for your deposit account, regular (e.g. daily) inspection of the account status, including comparison with the actual transactions – unfortunately, this includes more working hours which you will have to charge your client.
  3. Generally avoid participating in the automatic debiting procedure (AAD). In addition to your liquidity plan the point in time for transactions can be controlled considerably better through an individual order.

From our point of view the change of the regulations is very unfortunate as the possible ways to pay the administration fees have been very user-friendly in the past. Instructions for payment of fees are often received close to the deadlines. In this case, the representative could be sure that the fee was considered as paid if a request for participating in the ADA procedure has been submitted.

It seems that a service which has proved its worth will be abolished with the intention to generate additional earnings for the EPO (fee for reestablishment of rights).

Foto: © Martin Deutsch, [CC BY-NC-ND 2.0]

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