Jurisdictions

This is further to my earlier postings dated April 01, 2010, titled In the Pipeline: Future Revision of the Trade Mark System in the European Union and of April 15, 2010 titled Hungarian Way Of The Future Revision Of The Trade Mark System In The European Union, respectively. Following the Working Party meeting on 15 April 2010 and being intended for discussion at the meeting of the Working Party on 28 April 2010 (see CM 2580/10), the General Secretariat of the Council has published Document 8767/10 conveying a set of revised draft Council conclusions drawn up by the EU Presidency.

It appears as if many of the amendments as proposed by the Hungarian delegation in Document 8510/10 are now part of the Official politics of the EU Presidency.

In accordance with the Hungarian proposal, Sect 9a has been introduced stating that national trade marks continue to meet the economic needs of a large number of applicants, in particular those of SMEs, and that, therefore, national trade mark protection should be maintained as a reasonable option for these applicants has been inserted into the Official text.

However, the EU Presidency apparently was not brave enough to dare explicitly demanding a revision of the 'genuine use' provisions in the Regulation on Community Trade Marks. However, we find in the recent draft an ominous clause saying that the revision should include in particular amendments and other measures aimed at enhancing the complementary relationship between the Community and national trade mark systems. With other words, essential points are deliberately left open, and we surely might expect some [ugly?] surprises to come later on.

Today the EU Commission has published a press release concerning the 8^th round of negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA) held in Wellington, New Zealand from 12-16 April 2010. The text inter alia declares:

"[...] Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

It is intended to release this on Wednesday 21 April. [...]"

Obviously it was high time for the proponents of the ACTA treaty to go ahead and publish some Official text as leaked drafts are already circulating on the net.

Surely such kind of transparency would not have prevailed without continous protest from various quarters against the secrecy of the ACTA negotiations as hitherto practised by the parties to the talks. It appears to be overdue that this 'coalition of the willing' gathered together in 2006 on intitative of the Administration of the former U.S. President G.W. Bush in an attempt to bypass WIPO (which had been perceived as not being sufficiently tough for effectively pushing the world towards an effective IP enforcement regime in the era of digital technologies as dreamt up by some of the U.S. copyright-based industries) now ceases their futile policy to rush an Agreement through legislative processes without need to pass a broader public discussion.

On April 14, 2010, the Council of the European Union has published Document 8510/10 titled Draft Council conclusions on the future revision of the Trade Mark system in the European Union and authored by the Hungarian Delegation at the Council. Obviously the Hungarian proposal is a modification of the text presented by the Spanish EU Presidency with Document 8179/10; see my earlier posting on that matter.

As explained, the main attack vector against the overwhelming success of the centralised EU trade mark system centered around the OHIM seated in Alicante - which apparently is increasingly politically unwelcome throughout some EU Member States - is to divert 50% of the renewal fees to National Offices. Obviously this clause is devised in order to construct a formal parallel to the envisaged European Union 'Community' patent system wherein the National Patent Offices shall get some share of the renewal fees.

A brief cross-check of the Hungarian paper according to Document 8510/10 against the Presidential text according to Document 8179/10 uncovers a number of significant amendments:

A new Document CM 2332/10 announces that on April 15, 2010, the EU Working Party on Intellectual Property (Trade Marks) will meet in order to discuss a  Presidency proposal conveyed with Document 8179/10 on a future revision of the Trade Mark system in the European Union. This paper brings a set of draft Council conclusions to be passed by the EU Council later this year.

The core points of the proposal appear in particular to call on the EU Commission to present specific proposals for the revision of Council Regulation (EC) No 207/2009 on the Community Trade Mark and Directive 2008/95/EC approximating the laws of the Member States relating to trade marks. The intended revision will include in particular: