Een Duitse termijn
GvEA, 26 november 2008, zaak T-100/06, Deepak Rajani tegen OHIM / Artoz-Papier AG (Nederlandse vertaling nog niet beschikbaar).
Gemeenschapsmerken. Oppositieprocedure op basis van ouder international woordmerk ARTOZ (klassen 35, 41) tegen aanvraag gemeenschapswoordmerk ATOZ (klassen 35, 41). Oppositie toegewezen: Zeer overeenstemmende merken voor identiek waren. Gebruikstermijn ouder merk was nog niet verstreken (Duits recht van toepassing).
“37. It must therefore be held that, in the present case, since the Board of Appeal based the contested decision on an earlier international registration having effect in Germany, reference must be made to German trade mark law both for the date on which the international registration first took effect in Germany and for the starting point for the five-year time-limit.
(…) 43. It follows that if, in Germany, an applicant for a trade mark seeks proof of use of an earlier international registration in respect of which the German Patent and Trade Marks Office first made a declaration under Article 5 of the Madrid Agreement, but to which it later granted protection, the date of receipt by the International Bureau of WIPO of the final notification of the granting of protection constitutes the starting point for the calculation of the five-year time-limit. In the context of the German procedures, that date is therefore the date on which the registration procedure for an international registration is regarded as being completed.
(…) 46. Thirdly, as regards the complaint that by adding, of its own motion, the one-year time-limit to the five-year time-limit, the Board of Appeal turned the exception into the general rule, it should be noted that Paragraph 115(2) of the Markengesetz provides for such addition as a general rule. Moreover, OHIM rightly pointed out that an applicant for an international trade mark cannot be required to use and invest in the trade mark applied for before he knows whether the latter does actually enjoy the protection sought in the territory concerned, which was not the position before the expiry of the time-limit laid down in Article 5(2) of the Madrid Agreement.
47. Fourthly (…) it should be noted that that directive does not harmonise the procedural aspect of trade mark registration and it is thus for the Member State to determine the time at which the registration procedure comes to an end (…).”
Lees het arrest hier.
