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Community Trademark Community Trade Mark Renewals 2 The Community Trade Mark Ten Years On --------------------------------- 2 Country Overview: Belgium & the Community Trade Mark--------------- 2 The “INFERNO” case - Cancellation requests based on passing-off rights and non-use ---------------------------- 4 Community Design Latest case-law of the Community Design Court (Alicante): infringement of designs --------------- 4 Country Overview: Belgium & the Registered Community Design------ 5 RCD Invalidity Division decisions – 6 Case Law Latest Trade Mark cases from Luxembourg ----------------------------- 7 New decisions from the Boards of Appeal ----------------------------------- 13

OHIM User Satisfaction Survey
Background A key objective of the OHIM involves improving the services it offers to users of the Community trade mark and design systems. In 2005, the OHIM made clear its commitment to a better customer service by establishing a set of service standards for the treatment of CTM applications. Performance against standards is regularly monitored and revised according to the results. In addition to this measure and as part of the Office’s strategic plan, the OHIM identified the need to monitor satisfaction with our services and to gather feed-back. For this purpose a user satisfaction survey was carried out by GfK Elmer Ad Hoc Research on behalf of the Office during the period December 10, 2005 – January 10, 2006 to identify areas of improvement and to enable the Office to set appropriate priorities to enhance its services and to measure overall satisfaction. A total of 1, 119 questionnaires were received from 714 agents and 374 proprietors. As both the evaluation criteria and level of satisfaction differed consistently between these two groups their opinions were analyzed separately.

improvement. For the agents, “clarity of the decisions” and “coherence of the examiners’ decisions” occupy the highest places in terms of importance, while for the owners the “completeness and depth of the grounds for the decisions” is the most important aspect. Another weak area is the time aspect. Most of the users penalized OHIM for the time needed to deal with certain requests or process decisions. OHIM also needs to improve a common deficiency identified in all areas, i.e. the difficulty in contacting OHIM staff. This is especially important for those users who make practical aspects of OHIM’s services a priority.

Heavy and light volume of activity with the OHIM The survey shows that there is disparity of behavior between “heavy” and “light” users. In general, satisfaction increases among owners in parallel with their volume of activity, for the agents, however, the poorest evaluation of all the areas studies is always among those with a heavy OHIM portfolio.

More news New Website Address for the OHIM -------------------------------- 17 Events ------------------------------ 17 Visit of Mr. McCreevy, Commissioner for Internal Market and Services, to the OHIM----- 18 Speech by Commissioner McCreevy to the staff of the OHIM ---------------------------------------- 18 Monthly Statistical Highlights March 2006 -----------------------19 The OHIM E-Business Roundup March 2006 ----------------------- 20
Editorial Team: Etienne Sanz de Acedo, Mark Kennedy, Sabina Rusconi, Anna Gobetto, Ian Harrington, David García Collaborators: Cayetana Borrego, Herbert Meister, Wouter Verburg, Sabina Veit, Nicolas Vigneron
Subscribe at subscribe@oami.eu.int Unsubscribe at unsubscribe@oami.eu.int

Main conclusions – strengths and weaknesses Overall, users in general, and especially agents, are satisfied with the OHIM. The main strengths for both agents and owners are the global image, the Community Design, the communication area and OHIM staff. Agents and owners point out the high professionalism and quality of the services provided by OHIM contributing to its positive global image. In the area of information and communication, agents point out the completeness of the OHIM website. However, there is room for improvement for the owners. One of the major strengths of the Office is the Community Design system which does not present any weaknesses according to both agents and proprietors. Finally, users consider the major strength of the Office its staff. In the area of the Community trade mark, both agents and proprietors identify a number of weaknesses that need clear

Results by countries It is found that for both agents and owners, regardless of the aspect analyzed, British users are the least satisfied group of users, as opposed to Italian users showing the greatest satisfaction with the OHIM.

Priorities for improvement Even if the majority of users perceive an improvement in the functioning of the OHIM as against the previous year, it is clear that there is a necessity to react to certain weaknesses. In general, the ease of contact with the employees, as well as the speed of reply to enquiries, needs improving. More specifically, critical areas in the processing of Community trade marks need to be looked at. In all procedures including trade mark examination, opposition, invalidity and appeals the lack of clarity and coherence of the decision as well as the time factor give room for amelioration. Outlook A special user satisfaction task force, led by Ingrid Desrois, is developing an Action Plan to address the issues raised by the survey. It includes measures to tackle all the points

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identified as “strategic disadvantages” as well as “acceptable disadvantages” in the survey. Periodic progress reports will be published in Alicante News. The next user satisfaction survey is scheduled to be run in December 2006. At present the full survey is available in the five languages of the Office at http://oami.eu.int/en/office/survey05.htm

In just 24 hours, the expected number of CTM filings for the entire year had been surpassed by nearly 35%. By the time the Office returned from a well-deserved Christmas break some months later, the figures would reflect that 43,135 Community trade mark applications had been filed at the newly created OHIM throughout 1996. At the end of December 2005, a total of 470,020 CTM applications had been lodged at the OHIM and, as 2006 progresses, this figure is now close to the half million mark. Whereas 1997 saw the registration of only 576 CTMs, a total of 59,725 were registered in 2005. Today, there are over 314,000 registered Community trade marks on the books at the OHIM, nearly 18,000 of which have been registered this year alone. Of the 486,726 CTM applications filed, 98,133 oppositions have been lodged by third parties claiming prior rights to the marks applied for, representing 20% of the total amount. On a much smaller scale, the possibility of cancelling a CTM after registration has affected only 771 CTMs out of a total of 1,581 cancellation actions brought before the Office. Of these 771 cancelled marks, 106 were declared invalid or revoked, while the remaining 665 were withdrawn. The Community trade mark has proved to be universally popular in terms of the geographic origins of applicants, with filings from countries as far apart as Andorra and Zimbabwe. However, the United States of America tops the world ranking with 23.4% of all CTMs filed since 1996 coming from this country. The 25 countries of the European Union, lead by Germany, the United Kingdom, Spain, Italy and France, account for 64.6% of all CTMs filed, with the remaining 12% from around 150 countries worldwide. Goods in class 9 of the Nice classification, covering products in the electronics and IT industries, appear in over 10% of all CTM applications filed, making this the most popular industry sector for CTM applicants. In second place, services covered by class 42 of the Nice classification are applied for in nearly 8% of CTMs. Taking these figures into account, the evident popularity of the CTM among users from around the world augurs well for the next ten years of Community trade mark protection.

Community Trade Mark
Community Trade Mark Renewals
In April 1996, the Office for Harmonization in the Internal Market received over 20,000 Community trade mark applications, starting a steady flow which today stands at around half a million. Now, after ten years of EU-wide trade mark protection, these same applicants are applying for the renewal of their rights for a further ten years. Since the start of renewal activity in November 2005, more than 14,600 applications for CTM renewal have been received by the Office, accounting for almost 50% of the total number of renewable marks to date. For registered marks filed in the month of April 1996 alone, 63% have already been renewed. The electronic business solutions provided by the Office are proving to be particularly popular, with over 90% of all CTM renewal applications filed via the e-business interfaces designed specifically for this purpose. The ease of use and the fee reduction for e-renewals have been important factors in achieving this high incidence of e-renewal filings. Over the next two years, the OHIM expects nearly 35,000 companies to apply for renewal of their Community trade marks, accounting for between 55% and 60% of all renewable CTMs during this period. In terms of geographic location, 60% of all renewable marks over the coming years are owned by companies based in the European Union, and 28% of them are from the USA alone. Germany, Italy, France, Spain and Italy join the USA to make up the top six, accounting for over 70% of CTMs filed between April 1996 and December 1998. There can be no doubt that the international business community sees this unique way of protecting trademarks in the EU as both a cost-effective and attractive IP commodity, as reflected by the large number of companies applying for CTM renewal.

Country Overview: Belgium & the Community Trade Mark

The Community Trade Mark Ten Years On
Just before the Office for Harmonization in the Internal Market opened in 1996, the Office Management estimated that approximately 15,000 Community trade mark applications would be received that year. By the time they closed the new Office doors at the end of the first official day of CTM activity on 1 April 1996, more than 20,000 applications had been received, including some filed in the previous months but which had not yet been processed.

Belgium has a population of almost 10.5 million inhabitants and was one of the founding members of the European Union.

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The capital, Brussels, is the nerve centre of the EU’s administrative structure, hosting the Council and the Parliament as well as a number of other institutions and agencies. The Belgian business world consists of a series of large companies and a very high number of SMEs. In terms of Community trade mark filings, Belgium is ranked 12th in the world, and the total of 4 659 CTM applications received from Belgian businesses represents 1.51% of all Community trade marks filed at OHIM since 1996.
BELGIUM - CTM Filing Evolution Total CTMs: 7.182
1,000 900 800 700 600 500 400 300 200 100 0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 264 401 649 545 581 778 690 604 949 866 855

4.20%

30.30%

65.50%

Mail

Fax

E-Filing

Belgium’s level of electronic filings stands at 65.5% for the year 2006, and is a dramatic increase on the 13.13% of efiled applications in previous years. Faxed applications follow e-filings at over 30% with the much less preferred option of mailing CTMs to OHIM at a very low 4.2% Belgium - Top 10 CTM Filers Company GlaxoSmithkline Biologicals, S.A. Solvay S.A. Glaverbel S.A. AGFA-GEVAERT N.V. Recticel N.V. UCB GlaxoSmithkline Biologicals Manufacturing, S.A. InBev S.A. The European Community represented by the European Commission Total Belgium S.A.

Word 54.10%

Figurative 44.25%

3-D 1.46%

Colour 0.08%

Other 0.10%

Word marks account for around 54% of CTMs filed by Belgian applicants, followed by nearly 45% figurative marks. Belgium’s main CTM filings are for services in class 42 of the Nice classification followed by class 9 goods.
BELGIUM - Top Classes Filed (Nice)

CTMs 139 82 78 56 51 50 44 41 37 36

41 16 35

977 1,070 1,414

9 42 0 500 1,000

1,529 1,683 1,500 2,000

Belgium - Top 10 CTM Representatives Representative CTMs Bureau Gevers 1.988 Bureau M.F.J. Bockstael BV 934 Novagraaf Belgium 479 Remarkable 293 K.O.B. N.V. 178 Office Kirkpatrick 146 Evans 130 Office van Malderen 116 Marichal 82 Bureau van Malderen-Verplancke 81

Word marks account for around 54% of CTMs filed by Belgian applicants, followed by nearly 45% figurative marks. Belgium’s main CTM filings are for services in class 42 of the Nice classification followed by class 9 goods.

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The “INFERNO” case - cancellation requests based on passing-off rights and non-use
DECISION of the Cancellation Division of 22/12/2005 Community trade mark No 305672 “INFERNO” The Community trade mark No 305 672 for the word mark “INFERNO” was applied for and registered on 30/09/1998 for the goods in Classes 9, 12 and 28. On 27/01/2003 the applicant filed a request for a declaration of invalidity based on absolute grounds, and on 07/11/2003 filed a revocation request based on non-use. The applicant claimed invalidity on the basis of Article 8(4) CTMR in conjunction with Article 52 CMTR. The applicant claimed to be the owner of a non-registered trade mark used in the course of trade, of more than mere local significance in the UK and Ireland. The applicant had passing-off rights in relation to the trade mark INFERNO in the United Kingdom and Ireland. Furthermore, the applicant argued in the revocation request that the challenged Community trade mark had not been put to genuine use for software in the sense of Article 50(1) (a) CTMR. The CTM proprietor rejected such arguments. Both parties filed evidence in support of their arguments. As both cancellation requests were related to the same parties (the Community trade mark, the representatives of the applicant and the CTM proprietor all being the same), it was decided to join the proceedings despite the different nature of the grounds invoked – invalidity and revocation.

to prove a negative fact, namely that the mark has not been used during a continuous period of five years.

For the interpretation of “genuine use”, the Cancellation Division referred to the European Court of Justice decision in Case C-40/01, Ansul BV vs Ajax Brandbeveiliging. “Genuine use” must be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Use must be consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin. It follows that 'genuine use' of the mark entails use of the mark on the market for the goods or services protected by that mark and not just internal use by the undertaking concerned.

When assessing whether there has been genuine use of the trade mark, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real. Use of the mark need not, therefore, always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market. It is not necessary that the mark be used everywhere in the Community. Genuine use may be found also when the mark has been used in only part of the Community. According to the Cancellation Division the evidence submitted did prove that the trade mark INFERNO was genuinely used by the registered proprietor for software. The request for revocation was therefore also rejected.

As regards the passing-off right of the applicant, the Cancellation Division noted that the requirements in order to succeed under national law in an action of passing-off are: that the plaintiff’s goods or services have acquired goodwill or a reputation in the market and are known by some distinguishing feature; that there is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the plaintiff; and that the plaintiff has suffered or is likely to suffer damage as a result of the erroneous belief engendered by the defendant’s misrepresentation. The Cancellation Division decided that it had not been shown that the non-registered trade mark INFERNO had a reputation or that it had acquired a goodwill before the date of filing the Community trade mark, and accordingly the request for a declaration of invalidity based on Article 52(1)(c) of the CTMR was rejected. The Cancellation Division stated that most publications in support of the earlier trade mark were not published in the United Kingdom and/or Ireland, but rather in the United States of America. The publication of an article on the website of the University of Surrey was not considered enough to establish goodwill in the UK. As for sales, the given figures did not expressly relate to the period before the date of filing of the CTM nor were they high enough to have resulted in goodwill. As regards the revocation request, the Cancellation Division confirmed that the burden of proof in the case of non-use lies with the proprietor because the applicant cannot be expected

Community Design
Latest case-law of the Community Design Court (Alicante): infringement of designs
After the Plastimoda v. Creaciones B’Eloni case, which has already been the subject of a detailed article in our Alicante newsletter, issue 6/2005, available at the following address: http://oami.eu.int/en/office/newsletter/04007.htm#CD1, two new decisions have been recently issued by the First and Second Instance Community trade mark courts of Alicante. In the first case, the company Tous S.L. brought an action before the Community trade mark court of First Instance against the Spanish company Vilplasgo S.A., claiming that the defendant had marketed handbags and a wallet which closely imitated several of its unregistered Community designs. The First Instance court, competent to rule on this matter, pursuant to Articles 81, 88 and 90 of the Community Design Regulation (“CDR”), partially refused to grant the holder interim relief, deeming that some of the bags and the wallet were too dissimilar from Tous’ unregistered Community designs (Medida cautelar No 532/05 of 5 September 2005). However, the Court of Second Instance found that at least one of those bags, even though presenting some different elements, evoked an overall impression of similarity with the

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products of the defendant; therefore, the handbags cannot be deemed to be the result of independent work carried out by the defendant. The Court therefore, in its decision Auto No 25/06, issued on 1 March 2006, extended the injunction already granted by the First Instance Court for some of the copied items to this bag and made a seizure order for the bag. The other case concerns the company Loewe S.A. which on 13 February 2006 brought an action before the Community trade mark Court of First Instance against the Spanish company Vicosta S.L., claiming that its unregistered Community design, namely the collection of luxury bags “BAHIA”, had been copied by the defendant. In its decision of 20 March 2006 (Medida cautelar No 16/2006), the Court considered that, despite some similarities, the two bags display a considerable number of different details, which produce an overall impression that the bags are different. According to article 19(2) CDR, an unregistered Community design confers on its holder the right to prevent third party from using it, only if the contested use results from copying the protected design. Since the contested design has not been found to be a copy, the Court refused to grant Loewe interim relief. These two decisions will be available on our Website soon.

BELGIUM - RCD Filing Evolution
1,600 1,400 1,200 1,000 800 600 400 229 200 0 2003 2004 2005 2006 691 1,080 1,485

Belgian design applications are principally from manufacturers of lights and lighting apparatus followed closely by applications from the furniture industry. These sectors account for 20.3% and 18.3% respectively of all design applications received from Belgian applicants. Household goods, furniture and sanitary products follow in the ranking.

Country Overview: Belgium & the Registered Community Design
23 9 7 6 26

BELGIUM - Top Classes Filed (Locarno) 191 223 285 635 706 0 200 400 600 800

Belgium has a population of almost 10.5 million inhabitants and was one of the founding members of the European Union. The capital, Brussels, is the nerve centre of the EU’s administrative structure, hosting the Council and the Parliament as well as a number of other institutions and agencies. The Belgian business world consists of a series of large companies and a very high number of SMEs. In terms of registered Community design (RCD) filings, the 3,472 registered Community designs applied for since 2003 represent 2.03% of worldwide RCD application figures, putting Belgium in 12th place in the world ranking.

Mail and fax filings make up the majority of RCD filings from Belgium, with over 85% of all RCDs filed in this way. The fact that fax filing is discouraged by the Office due to the lack of picture quality when enclosing samples of designs makes submission of hardcopy documents more common. As the Office’s e-filing systems continue to develop, it can be expected that the particularly low figure of 15% will increase steadily over the coming months.

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individual character and because it constitutes a prohibited use of work protected under German copyright law.

15%

The contested RCD was registered for tents and the design is represented in the following views:

32%

53%

M ail

Fax

E-Filing

BELGIUM - Top 10 RCD Filers Company Massive NV Electrolux Home Products Corporation NV Ethnicraft Benelux Orient THEO B.V.B.A. Janssens Soremartec S.A. J. Sarens NV Karel Mintjens NV Rom A.G.

The prior design/work is represented as follows: RCDs 540 210 147 118 102 73 73 58 56 53

BELGIUM - Top 10 RCD Representatives Representative RCDs Bureau M.F.J. Bockstael NV 720 Bureau Gevers 624 K.O.B. NV 206 Remarkable NV 110 Hochmuth 89 Arnold & Siedsma 80 Jacobacci & Partners S.P.A. 73 Novagraaf Belgium SA/NV 62 Svahn 60 Grünecker, Kinkeldey, Stockmair & 53 Schwanhäusser Sarens 50

RCD Invalidity Division decisions: national copyright infringement? Invalidity decision No ICD 000001014/ RCD No 000027826-0001
On 20 January 2006 the Invalidity Division of the Designs Department released a decision in a case where the applicant claimed that an RCD should be declared invalid because it does not comply with the requirements of novelty and

The Invalidity Division found that the RCD is not identical to the prior design and that the impression produced by the two designs is not similar. The claim according to Article 25(1)(b)CDR was therefore dismissed. Moreover, the Invalidity Division concluded that the other ground for invalidity claimed by the applicant, i.e. that the RCD constitutes unauthorised use of a work protected under German copyright law according to Article 25(1)(f) CDR, does not apply because the RCD is not a copy of the work. The decision may be found at: http://oami.eu.int/pdf/design/invaldec/ICD%20000001014%20 decision%20(DE).pdf

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Case Law
LATEST TRADE MARK AND DESIGN NEWS FROM LUXEMBOURG

(b) Similarity of marks: issue of fact “ ( 40) As regards the appellant’s second complaint, relating to the assessment of the conceptual and visual differences of the signs at issue, it must be stated that the appeal is, in reality, asking the Court of Justice to substitute its own assessment of the facts for that of the Court of First Instance. ( 41) It is sufficient to point out, in that regard, that the Court of First Instance’s decision contained in paragraphs 50 and 51 of the judgment under appeal, according to which the visual and conceptual differences between the signs at issue counteract their phonetic similarity, constitutes a finding of fact which is outside the jurisdiction of the Court of Justice to review on appeal. Indeed, it is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see BioID v OHIM, paragraph 43, and the case-law there cited). – (42) Since the appellant has not relied upon any distortion of the facts or evidence submitted to the Court of First Instance, the second complaint in the second part of the single ground of appeal must be rejected as inadmissible. “ (c) Similarity of marks: one criterion sufficient? “ ( 21) It is conceivable that the marks’ phonetic similarity alone could create a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 (see, in respect of Directive 89/104, Lloyd Schuhfabrik Meyer, paragraph 28). However, it must be noted that the existence of such a likelihood must be established as part of a global assessment as regards the conceptual, visual and aural similarities between the signs at issue. In that regard, the assessment of any aural similarity is but one of the relevant factors for the purpose of that global assessment. (22) Therefore, one cannot deduce from paragraph 28 of the judgment in Lloyd Schuhfabrik Meyer that there is necessarily a likelihood of confusion each time that mere phonetic similarity between two signs is established. “

A: European Court of Justice (ECJ): Appeals from decisions of the Court of First Instance, Article 63 CTMR A-1: JUDGMENTS AND ORDERS
Zirh/Sir or Mülhens: C-206/04 P – Judgment of 23 March 2006 (action dismissed). Keywords: Likelihood of confusion/assessment – Comparison of goods: issue of fact? – Comparison of marks: issue of fact? - Comparison of marks/similarity: one criterion sufficient? A dispute had arisen between CTM application ZIRH in Classes 3, 5 and 42, and the earlier right SIR (a mixed word and figurative mark) in Class 3. The Opposition Division, the 2 nd Board of Appeal (decision of 1.10.2002, R 247/2001-2), as well as the CFI had rejected the opposition (CFI of 3.3.2004, T-355/02 [2004] ECR II-791). Notwithstanding similarity of the goods at issue and a certain phonetic similarity of the marks, the remaining differences between the two marks would be significant enough to deny a risk of confusion. – The First Chamber of the ECJ (Judge-Rapporteur M. Ilesic) confirmed the findings. (a) Comparison of goods: issue of fact “(27) As regards the appellant’s second complaint concerning the effect of the methods of marketing the goods in question, it must be stated that the appeal is asking, in reality, that the Court of Justice substitute its own assessment of the facts for that of the Court of First Instance. (28) The Court of First Instance’s decision, contained in paragraphs 52 to 54 of the judgment under appeal, according to which the goods concerned are generally sold in such a way as to enable the relevant public to examine them visually, constitutes a finding of fact which is outside the jurisdiction of the Court of Justice to review on appeal. It is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Case C-37/03 P BioID v OHIM [2005] ECR I-0000, paragraph 43, and the case-law there cited). (29) Since the appellant has not relied upon any distortion of the facts and evidence submitted to the Court of First Instance, the second complaint in the first part of the single ground of appeal must be rejected as inadmissible. “

A-2: DEVELOPMENTS IN PENDING CASES
Bonbonverpackung or Karamellbonbon (2): C-25/05 P – Opinion of the Advocate General of 23 March 2006 - (EN version not yet available). Keywords: Distinctiveness: representation (figurative) of a sweet wrapper. The action concerns a judgment handed down by the CFI on 10.11.2004 in T-402/02. The CFI had rejected an application

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for a trade mark representing a twisted wrapper (shape of a sweet wrapper)..– Advocate General Ruiz-Jarabo Colomer proposed dismissing the action.

A-3: NEW APPEALS
Cristal Castellblanch/Cristal : C-131/06 P (appeal from T29/04 of 8.12.2005). Keywords: CFI proceedings: Admissibility of documents provided for the first time to the CFI - Scope of review of the case at opposition - Limitation of CTM application at the appeal stage - Use requirement: concrete use different from registration – Reputation: relevant consumers. The CTM application consists of a combination (figurative elements and the words CRISTAL CASTELLBLANCH) in Class 33. The invoked earlier right is the wordmark CRISTAL, registered in most of the original 15 EU Member States in Class 33. The opponent claimed reputation in Belgium , France , the UK and Germany for “wines from Champagne ”. The Opposition Division maintained the opposition on the basis of likelihood of confusion, relying solely on the French right. Notwithstanding that the CTM applicant and appellant had limited its application to “Spanish sparkling wines from the cava variety”, the 2 nd Board of Appeal confirmed the initial decision. Genuine use of the French right had been established (R 37/2000-2 of 17.11. 2003). The CFI dismissed the subsequent appeal. The Court confirmed that “legal” material may be produced for the first time before the Court (in this case, references from national jurisprudence). As regards use different from the sign as registered, the court accepted the particularities which exist in the wine trade: where the company name or the manufacturer’s name is added to the mark as registered, that practice is acceptable as long as the distinctive quality of the mark as such is not affected. As concerns reputation claimed for a mark for wines and sparkling wines etc.: the respective survey must show renown not only as regards specialised traders etc. but also as regards the general public (“average consumers”).

Karamellbonbon (1) : C-24/05 P – Opinion of the Advocate General of 23 March 2006 . (EN version not yet available). Keywords: Distinctiveness (3D): shape of a sweet. The action is brought against a judgment handed down by the CFI on 10.11.2004 in T-396/02. The CFI had confirmed rejection of an application for a three-dimensional mark consisting of the oval shape of a sweet. - Advocate General Ruiz-Jarabo Colomer proposed dismissing the appeal.

Sissi Rossi/Miss Rossi or Miss Rossi: C-214/05 P – Opinion of Advocate General Kokott of 16 March 2006 (EN version not yet available). Keywords: CFI proceedings: rejection of new evidence – Article 74(2) CTMR/opposition proceedings: evidence submitted out of time – Opposition: comparison of goods (handbags/ladies’ footwear). The Advocate General, Mrs. Kokott, suggested rejecting the action, i. e. she took the view that CFI Judgment of 1 March 2005, T-169/03, had been correct.

Naipes or Playing Cards: C-311/05 P – Office response filed (ES). Keywords: Distinctiveness: representations of a sword, a knight of clubs and a king of swords (for playing cards). The action is directed against a decision handed down by the CFI in joined cases T-160/02, T-161/02 and T-162/02. The CFI had confirmed cancellation of the three CTM concerned which had been registered for playing cards in Class 16.

B: ECJ: Preliminary Rulings B-1: RULINGS
Matratzen : C-421/04 – Judgment of 9 March 2006 . Keywords: First Council Directive 89/104/EEC (“trade mark Directive”). - Distinctiveness: sign applied for in a Member State in a language borrowed from another language – ECTreaty: free movement of goods. Reference from the Audiencia Provincial de Barcelona, made by decision of 28. 6. 2004 in the case Matratzen Concord AG v Hukla Germany SA. Hukla is the owner of the Spanish trade mark MATRATZEN, registered in 1994, inter alia, for beds and mattresses. Matratzen is the German term for mattresses. In 1996, the plaintiff filed a CTM application consisting of a combined figurative and word mark, and comprising the word “Matratzen”. That application was rejected on an opposition lodged by Hukla SA. In parallel, the plaintiff initiated cancellation

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proceedings against the Spanish mark relying on the argument that registration of a mark in a language of another M ember State would run counter to the principle of free movement of goods. The First Chamber of the ECJ (JudgeRapporteur M. Ilesic) held: “ Article 3(1)(b) and (c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks does not preclude the registration in a Member State, as a national trade mark, of a term borrowed from the language of another Member State in which it is devoid of distinctive character or descriptive of the goods or services in respect of which registration is sought, unless the relevant parties in the Member State in which registration is sought are capable of identifying the meaning of the term.”

im Sinne von Artikel 6 Absatz 1 Buchstabe b der Richtlinie 89/104. (3) In Fällen wie dem vorliegenden sind die vom Gerichtshof in den Urteilen Anheuser-Busch sowie Gillette Company und Gillette Group Finnland aufgestellten Kriterien für die Beurteilung der Frage maßgebend, ob die Benutzung der Marke den anständigen Gepflogenheiten in Handel oder Gewerbe entspricht. Bringt der Hersteller des Modellfahrzeugs auf der Verpackung und einem zur Benutzung des Spielzeugs erforderlichen Zubehörteil ein für den Verkehr als Eigenmarke erkennbares Zeichen sowie seine Unternehmensbezeichnung unter Nennung seines Firmensitzes an, so handelt er, vorbehaltlich der vom nationalen Gericht vorzunehmenden Gesamtwürdigung aller relevanten Umstände, in einer Weise, die den anständigen Gepflogenheiten in Gewerbe oder Handel entspricht. „

B-2: NEW CASES
(-)

B-3: DEVELOPMENT IN PENDING CASES
Opel Blitz or Adam Opel or Opel Logo: C-48/05 – Opinion of Advocate General Ruiz-Jarabo Colomer of 7 March 2006 (EN version not yet available). Keywords: Fair use: trade mark on a replica item (toy or collectors` item) – Exhaustion of a trade mark right. C-1: EX PARTE The case concerns questions in relation to Articles 5 and 6 of the trade mark Directive. A manufacturer of toy cars used the Opel logo on a 1:24 replica (“Miniaturmodell”) of an Opel Astra car. Whereas the regional Court Nürnberg-Fürth basically assumed that use of a brand on a 1:24 replica of an original car would not be perceived as a badge of origin in relation to the manufacturer of the “real” car, it still had some doubts. It therefore asked the ECJ whether such use on a toy would amount to “use” within the meaning of trade mark law, i. e. Article 5 of the Directive. In his conclusions, Advocate General Ruiz-Jarabo stated that, in his view, it would not. In the alternative, he proposed applying the “fair-use” clause within Article 6 (1)(b) of the trade mark Directive. “( 1) Die Benutzung eines eingetragenen Zeichens für Spielzeug stellt keine Benutzung als Marke im Sinne von Artikel 5 Absatz 1 Buchstabe a der Ersten Richtlinie 89/104/EWG des Rates vom 21. Dezember 1988 zur Angleichung der Rechtsvorschriften der Mitgliedstaaten über die Marken dar, wenn der Hersteller eines Spielmodellautos ein real existierendes Vorbildfahrzeug in verkleinertem Maßstab einschließlich der auf dem Vorbild angebrachten Marke des Markeninhabers nachbildet und in Verkehr bringt. (In the alternative) Falls der Gerichtshof hinsichtlich der ersten Frage diesen Standpunkt nicht teilt, schlage ich ihm vor, die zweite und die dritte Frage wie folgt zu beantworten: (2) Die in Ziffer 1 beschriebene Art der Benutzung der Marke ist eine Angabe über andere Merkmale des Modellfahrzeugs Mario/East Side Mario’s : T-152/0. – Order of 22 February 2006 : no need to adjudicate. The action concerned a decision of the 4 th Board of Appeal of 13.12.2004, R 582/2003-4. In the Order of 22.2.2006, the President of the Fifth Chamber of the CFI (Vilaras) stated that the defendant had informed the court that the intervener had withdrawn its “opposition”. In consequence, the case was closed; Case T-10/01 Sedonium [2003] ECR II-2225 cited.

C: Court of First Instance (CFI): Judgments and Orders on appeals against decisions of the OHIM, Art. 63 CTMR

Develey (3D) or Shape of a plastic bottle: T-129/04 – Judgment of 15 March 2006 (action dismissed). Keywords: Distinctiveness/three-dimensional items: shape of the product – Distinctiveness/assessment: impact of prior national registrations – Board of Appeal proceedings/assessment of distinctiveness: obligation to provide examples of practical experience? The action had been brought against a decision of the 2 nd Board of Appeal of 20.1.2004, R 367/2003-2, which had rejected an application for a 3D-sign, the shape of a mustard bottle, in Classes 29, 30 and 32. The Second Chamber of the CFI (Pirrung, Meij, and Pelikánová) dismissed the appeal, referring to established case-law.

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The action concerns a cancellation case. The CTM at issue is WEISSE SEITEN (white pages), initially registered for a range of goods and services in Classes 9, 16, 41 and 42. Most of its scope had been cancelled by a decision of the 1 st Board of Appeal of 19.6.2003 in joined cases R 580/2001-1 and R 592/2001-1. The CFI action had been brought by fax within the time limit set out in Article 43(6) of the Rules of Procedure. A fax transmission, however, is taken into account only if the signed original reaches the Court no later than 10 days thereafter. The plaintiff did not comply but claimed force majeure. The Court accepted that argument. “ ( 18) The concepts of force majeure and unforeseeable circumstances contain, besides an objective element relating to abnormal circumstances unconnected with the party in question, a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, he must pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (Case C-195/91 P Bayer v Commission [1994] ECR I-5619, paragraph 32). Thus, the concepts of force majeure and unforeseeable circumstances do not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (see, to that effect, Case 209/83 Valsabbia v Commission [1984] ECR 3089, paragraph 22, and the order in Case C325/03 P Zuazaga Meabe v OHIM [2005] ECR I-403, paragraph 25). (19) In the present case, the applicant directly entrusted the Austrian postal service with the task of sending the original of its pleading on 9 September 2003 , namely the very day after the fax was sent. Subsequently, the item of mail was passed by the Austrian postal service to the Luxembourg postal service on 11 September 2003 which, in turn, placed it in the hands of the company Michel Greco on 12 September 2003 . However, that company took seven days to deliver the item to the Registry of the Court of First Instance. (20) Therefore, the main, or even sole, reason for the delay was that the application did not reach the Court until seven days after its arrival in Luxembourg (see, to that effect, Joined Cases 25/65 and 26/65 Simet and Feram v High Authority [1967] ECR 33). That must be regarded as unforeseeable circumstances in respect of the applicant and the latter, which displayed the diligence expected of an ordinarily prudent applicant in order to comply with the time-limits, cannot be accused of having contributed to the delay by conduct of its own.“

It was held that there is no obligation for the Board of Appeal to specify the basis for its assessment: “ (19) Thirdly, it should be noted that, where the Board of Appeal of Appeal finds that the trade mark sought is devoid of intrinsic distinctive character, it may base its analysis on facts arising from practical experience generally acquired from the marketing of general consumer goods which are likely to be known by anyone and are in particular known by the consumers of those goods (see, by analogy, Case T-185/02 Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO) [2004] ECR II-1739, paragraph 29). In such a case, the Board of Appeal of Appeal is not obliged to give examples of such practical experience. (20) It is on that acquired experience that the Board of Appeal of Appeal relied when it held, in paragraph 52 of the contested decision, that the relevant consumers would perceive the trade mark sought as a normal bottle intended to hold drinks, condiments and liquid foodstuffs and not as the trade mark of a particular manufacturer. (21) Since the applicant claims that the trade mark sought is distinctive, despite the analysis of the Board of Appeal of Appeal based on the abovementioned experience, it is for the applicant to provide specific and substantiated information to show that the trade mark sought has either an intrinsic distinctive character or a distinctive character acquired by usage, since it is much better placed to do so, given its thorough knowledge of the market (see, to that effect, Case T-194/01 Unilever v OHIM (Oval tablet) [2003] ECR II-383, paragraph 48). “ C-2: INTER PARTES Weisse Seiten : T-322/03 – Judgment of 16 March 2006 (action dismissed). Keywords: CFI proceedings/time limits; CFI time limits: date of receipt of signed original - CFI time limits/exception: force majeure - Cancellation proceedings/absolute grounds for invalidity.

Ferro/Ferrero : T-35/04 - Judgment of 15 March 2006 (action dismissed). Keywords: Opposition: comparison of goods. – Comparison of goods: differentiation within the same class (foodstuff). The action was directed against a decision of the 1 st Board of Appeal of 1.12.2003, R 460/2002-1, by which the Board of Appeal had confirmed a partial rejection of CTM application

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FERRÓ (combined word and figurative mark) on the basis of the earlier right Ferrero. The CTM application had initially covered a range of goods and services in Classes 29, 30 and 42. The invoked earlier right is registered for certain products in Classes 5, 29, 30 and 33. Whereas the opposition division concerned had not found any similarities as regards the conflicting goods in Class 29, it had done so with respect to a range of goods in Class 30. – The CFI confirmed the findings of the Board of Appeal .

Keywords: Well-known marks within Art. 8(2)(c) CTMR – Art 8(4) CTMR: earlier trade mark right acquired on the basis of use – Art. 8(4) CTMR: earlier business identifier used in trade – Relevant date on which enhanced recognition must be present – Evidence: material presented for the first time before the Board of Appeal - Evidence: relevance of information contained on websites. The action concerns a decision by the 1 st Board of Appeal of 21 September 2005 (R 1118/2004-1) which had confirmed a rejection of an opposition directed against CTM application “Dr. No” (word) in Classes 9, 12, 18, 25 and 32. The invoked earlier signs are “Dr. No” and “Dr. NO” for films, DVDs, comic books, music recording, books, posters and action figures (toys). The Board of Appeal accepted without further discussion material presented for the first time at the appeal stage. As regards the relevant point in time on which legally valid use of a sign as a trade mark, in the European Union, must be shown, the 1 st Board of Appeal confirmed established practice: evidence must relate to the period prior to the filing of the challenged CTM application. The same applies as concerns evidence from the internet. The respective sign must be used as a badge of commercial origin, i. e. as a trade mark, whatever be the context in general (for instance, information about the success of a movie). As regards the criteria which must be present for a valid claim under Article 8(4) CTMR, the 1 st Board of Appeal confirmed the “European approach”: in order to qualify as an earlier right within the said provision, the sign or other business identifier must have been used in the course of trade, irrespective of any national law to the contrary.

Euromaster/Euromaster : T-31/04 – Judgment of 15 March 2006 (action dismissed). (EN version not yet available.) Keywords: Opposition: comparison of goods. The action was directed against a decision of the 1 st Board of Appeal of 12.11.2003 in joint cases R 419/2001-1 and R 530/2001-1. The Board of Appeal had confirmed a decision by an opposition division which had partially allowed an opposition based on EUROMASTER registered in various Member States in classes 12 and 37, against CTM application euroMASTER (fig.) in classes 39 and 41. The CTM application was rejected as concerns the services in class 39. - The CFI confirmed the Board of Appeal decision.

C-3: DEVELOPMENTS IN PENDING PROCEEDINGS IFS or Toyota : T-462/05 – Office response filed. Keywords: Distinctiveness: combination of letters. The action is directed against a decision of the 1 st Board of Appeal of 14.9.2005, R 1157/2004-1, by which the Board of Appeal had confirmed rejection of the application of the letters “IFS” in Class 12. The rejection was based on Article 7(1)(b) and (c) CTMR (IFS = independent front suspension; a term being generically used in the motorcar business). La Kings/King : T- 414/05. Office response filed. Keywords: Likelihood of confusion/comparison of marks – Similarity of marks: impact of conceptual identity – Conceptual identity outweighs visual dissimilarity. The CTM application, in Classes 16, 25 and 41, consists of a figurative mark (with a dominant heraldic figurative element) containing the words LA on the top and KINGS at the bottom. The earlier right, in Class 25, consists of the stylised word KING. An opposition division had upheld the opposition for Class 25. The 4 th Board of Appeal confirmed the decision (R 371/2003-4).

Letter

I

:

T-441/05

–

Office

response

filed

(DE). single Revian´s/Evian : T-407/05 – Office response filed. Keywords: Notice of opposition/formal requirements – Earlier right: evidence of existence/translations – Opposition proceedings: evidence, translations = merits of the case (Chef T-232/00, referred) – Scope of translations: Biomate, T107/02, referred. - Principle of party disposition (Article 74(1) CTMR) - Reputation mark: requirements of claim - Goods and services: similarity – National precedents: relevance.

Keywords: Article coloured letter.

7(1)(b)

CTMR/distinctiveness:

The action is directed against a decision of the 4 th Board of Appeal of 1.9.2005, R 559/2004-4, by which the Board of Appeal had confirmed rejection of an application for the letter “I” in blue colour for a range of services in Classes 35-37, 39, 42 and 43.

Dr. No/Dr. No : T-435/05 - Office response filed.

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Appeal from R 82/2002-4 (DE) by which the 4 th Board of Appeal had rejected an appeal against a decision by an Opposition Division rejecting Evian’s opposition. CTM application: REVIAN´S (stylised; colours gold, black, white) in Class 33, wine and sparkling wine – Earlier right EVIAN in Class 32, mineral waters – The Board of Appeal confirmed the Office’s practice as regards use of a standard letter inviting the opponent to amend its notice of opposition within four months (with no need for further communication as regards rectification of deficiencies). The Opposition Division’s assessment of similarity of goods differed from national precedents. The Board of Appeal confirmed dissimilarity between mineral waters and wine and sparkling wine (Sergio Rossi, T-169/03, cited).

Board held that, as regards goods in Classes 3 and 9, “Web” must be considered very distinctive and inventive.

Citi/Citibank : T-181/05 - Observations of the Office on a succession in title. Link/Link : T-325/04 – Observations of the Office on a succession in title. Keywords: CFI proceedings/change of a party: succession in title.

Manpower : T-405/05 – Office response filed. Keywords: Distinctiveness acquired by use - Secondary meaning acquired in part of the European Union – Invalidity proceedings: scope of inspection by a Cancellation Division – Ex officio taking of evidence – Evidence: taking of; relevant point in time as regards evidence on absolute grounds for refusal. Appeal from R 499/2004-4 of 22.7.2005 by which the 4 th Board of Appeal had dismissed an appeal against a decision of a Cancellation Division rejecting a request for invalidation based on absolute grounds. The CTM is registered for goods and services in Classes 9, 16, 35 (employment agency services; temporary personnel services), and 41 and 42. The CTM application had been accepted on the basis of evidence that the sign at issue had, before the application was made, acquired secondary meaning in the UK and in Germany .

C-4: NEW APPEALS Sac or Forme d´un sac: T-73/06 (appeal from R-687/2005-2; FR). Keywords: Distinctiveness: representation (drawing) of the product – Distinctiveness: acquired in the market place. The action concerns a decision of the 2 nd Board of Appeal of 8.12.2005, R 687/2005-2, by which the Board had rejected a CTM application of the representation (drawing) of a bag (for bags in Class 18). The Board held that more stringent criteria applied for assessing distinctiveness in the case where the representation of the product itself should serve as the trade mark. SiSi (Standbeutel), CFI of 28.1.2004, T-146/02-T153/02, cited.

Windenergie-Konverter (3D) : T-71/06 (appeal from R 179/2005-2). Webmulti/Web : T-395/05 – Office response filed. Keywords: Proof of use: requested for the first time at the appeal stage – Similarity of goods: reference consumers – Similarity of marks. Appeal from R 895/2004-1 of 20.6.2005 by which the Board of Appeal had rejected an appeal against a decision of an Opposition Division (No. 2462/2004) by which the Opposition Division had rejected the CTM application Webmulti for Classes 3, 9, 25. The CTM application for Webmulti was in Classes 3, 7, 8, 9, 16, 20, 21, 25, 30. – Earlier CTMs included “Web” in Classes 3 and 25, and several earlier rights in various Member States in Classes 3, 9, 25. As regards requests for proof of use, the Board referred to Mundicor (T-183/02 and T-184/02) and Flexi Air (T-112/03) as settled case-law: it must be presumed that earlier rights have been used unless the applicant requests prove of use. Such a request must be made at the earliest possible stage. As regards comparison of the marks, the Keywords: Distinctiveness: shape of part of the product – Acquired distinctiveness: relevant markets – Acquired distinctiveness: relevant point in time. The action concerns a decision of the 2nd Board of Appeal of 30.11.2005, R 179/2005-2, by which the Board had rejected a CTM application for the three-dimensional shape of part of a wind energy apparatus (see below).

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revoked a decision of the Opposition Division and had rejected CTM application Elini (stylised) in Class 14. The opposing trade mark is Cellini (stylised), also in Class 14. – At the opposition stage, the opponent (Rolex S. A.) had submitted the argument that the invoked earlier right would enjoy reputation based on the fact that its owner was Rolex S.A. , Switzerland . - The Opposition Division had rejected the opposition, inter alia, on the grounds that in the area of luxury goods the consumers´ attentiveness would be exceptionally high. The Board of Appeal allowed the opposition by applying standard criteria.

Top ix/Tofix : T-57/06 (appeal from R- 1147/2004-2). Keywords: Comparison of products - Comparison of marks – Likelihood of confusion/earlier right: impact of the existence of similar marks in the market place. The Board referred to precedents stating that in respect of the perception as a trade mark, by the relevant consumer, of three-dimensional items, and in particular the shape of the product itself, would be different as compared to traditional business or product identifiers. As regards acquired distinctiveness, the Board held that, in principle, it must be shown in all territories where the type of product is offered. As regards the relevant point in time, the Board of Appeal confirmed that distinctiveness must be acquired before the date of application as a trade mark. The action is directed against a decision of the 2 nd Board of Appeal of 14.12.2005, R 1147/2004-2, which had rejected an appeal against a decision of the Opposition Division. The Opposition Division allowed an appeal against CTM application “Top ix” (fig.) in Class 3, based on the earlier right TOFIX in Classes 3 and 5. The opponent had argued that the existence of similar marks in the same area of business would weaken the distinctive character of the earlier right.

Vorsprung durch Technik or Audi slogan: T-70/06 (appeal from R 237/2005-2). Keywords: Distinctiveness: slogans – Distinctiveness acquired in the market place: impact of time in the case of a repeated application. The action is directed against a decision of the 2nd Board of Appeal, R 237/2005-2, by which the Board had only partially allowed CTM application “Vorsprung durch Technik”, namely in Class 12. The slogan had been applied for in Classes 9, 12, 14, 16, 18, 25, 28, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 45. In relation to certain doubts, the examiner had been made aware that the slogan at issue had already been accepted, on the basis of acquired distinctiveness in the market place, as CTM 621 086. The examiner took the view that, after expiry of five years, the respective criteria had to be proven anew, and rejected the application. The Board of Appeal dismissed that argument and allowed the slogan for Class 12.

NEW DECISIONS APPEAL

FROM

THE

BOARDS

OF

The cases can be found in our website. http://oami.eu.int/search/LegalDocs/la/en_BoA_index.cfm Please note that the full number including the forward slash has to be entered in our database under 'Appeal Nº', without the letter 'R'. e.g. Case R 219/2004-1 has to be entered under 'Appeal Nº' as: 219/2004-1 Global figures for February 2006 Appeals pending 31 January 2006 : 1614 Appeals pending on 28 February 2006 : 1580 Appeals filed in February 2006: 133 Appeals settled in February 2006: 162

EX PARTE - Article 7(1)(b) Elini/Cellini : T-67/06 (appeal from R 725/2004-4). Keywords: Opposition: mark with reputation - Opposition: Comparison of marks – Likelihood of confusion/reference consumer: attentiveness (expensive watches). The action is directed against a decision of the 4 th Board of Appeal of 12.12.2005, R 725/2004-4, in which the Board had Examination proceedings – absolute grounds for refusal – distinctiveness - shape – design Decision of the First Board of Appeal of 16 January 2006 in Case R 16/2005 (English)

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to the toys and playthings that the applicant claimed in Class 28. The appeal was dismissed R 0016/2005-1 (shape of a motor car – 3D) – (en) - The three-dimensional shape was not capable of distinguishing the business origin of the contested goods. The applicant’s statement that the shape of the automobile is ‘sufficiently different from the shapes commonly used’ and would therefore function as a badge of origin is dismissed. It is not sufficient that the shape is different from other shapes to make it distinctive as a CTM. What matters under Article 7(1)(b) CTMR is less the dissimilarity from shapes that already exist in the marketplace and more the ability of the shape, per se, of being perceived as a brand of the product. Consumers who look at the car will perceive that the element denoting business origin (the maker) is the name HUMVEE and that what the applicant calls the shape is, in fact, its design. Consumers are nowadays enough well informed to distinguish, in most products, the design content from the technical components as well as from the manufacturer’s trade mark. The considerations expressed by the Board of Appeal also apply to the toys and playthings that the applicant claimed in Class 28 and to the services listed in Class 37, where similarly the external appearance of a car, particularly if it is three-dimensional, is not generally perceived by reasonably observant consumers as identifying the business origin of automotive repair services. The appeal was dismissed

Examination proceedings – absolute grounds for refusal – distinctiveness - shape – figurative element - assessment

Decision of the Fourth Board of Appeal of 8 February 2006 in Case R 889/2005 (German)

Examination proceedings – absolute grounds for refusal – distinctiveness shape – design Decision of the First Board of Appeal of 18 January 2006 in Case R 827/2005 (English)

R 0889/2005-4 (Stilisierter Haftverschluss II) – (de) – A figurative mark showing a realistic representation of the goods has to be judged in the same way as a threedimensional mark for the shape of those goods. The same is true for a figurative mark showing a stylized representation of the goods, but only if the stylization is commonplace and not fanciful. The figurative mark applied for here merely provides an abstract, suggestive reference to the function of a fastening, not an illustration of the product itself, even in merely stylised form. Average consumers will not know what the elements of an adhesive fastening really look like. In contrast, skilled workers, who are familiar with the precise mode of operation of adhesive fastenings, will recognise that the illustration applied for does not provide any meaningful information about the design of the goods which it characterises. Distinctiveness accepted for a device showing stylised elements of a hook-and-loop fastener.

Examination proceedings – absolute grounds for refusal – distinctiveness - shape – figurative element - assessment (shape of a motor car – R 0827/2005-1 3D) – (en) - The three-dimensional shape was not capable of distinguishing the business origin of the contested goods. The applicant was correct when it insisted on the importance of design, particularly in the automotive industry and about the ‘uniqueness’ of the design of the car it is seeking to register as a CTM. These qualities, both aesthetic and functional, are typically those of a design rather than of a trade mark. The average driver certainly does pay close attention to the external appearance of a car but, and this is the crucial point in this appeal, perceives it as its design, i.e. an aesthetic-cumfunctional feature of the car, not as its trade mark. Drivers are aware that cars bear a brand name – and, very often, an emblem – that reverts to the manufacturer. They are sufficiently observant to know that the brand name and the emblem are the marks under which cars are referred to in the relevant trade and eventually sold to the public. The considerations expressed by the Board of Appeal also apply Decision of the Fourth Board of Appeal of 8 February 2006 in Case R 889/2005 (German)

R 0874/2005-4 (Stilisierter Haftverschluss I – (de) – (see above case R 0889/2005-4).

Examination proceedings – absolute grounds for refusal – distinctiveness - shape – figurative element - assessment Decision of the Fourth Board of Appeal of 8 February 2006 in Case R 889/2005 (German)

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R 0870/2005-4 ( Stilisierter Haftverschluss III) – (de) – (see above case R 0889/2005-4).

the absence of other elements such as verbal or graphic elements, this shape possesses the required minimum degree of distinctiveness. The witness statements and the exhibits attached thereto (market surveys in four countries of the EU) were not enough to demonstrate that the relevant consumer in the Community perceives the shape of the bottle as an indication of origin. The appeal was dismissed.

Examination proceedings – absolute grounds for refusal – slogan – distinctiveness - minimum degree of distinctiveness Decision of the Second Board of Appeal of 10 February 2006 in Case R 727/2005 (English) R 0727/2005-2 IT’S A TRUST THING – (en) – It was heldthat the slogan may convey a concept of confidence and a subtle message that the goods and services are perhaps safe and trustworthy. However, the message conveyed is non-specific. Even when the particular goods and services are known, the slogan is vague and indirect and therefore merely allusive. The message is not exceptional but it is expressed in a slightly unusual manner. It does not appear that the rights of other traders would be unfairly affected if trade mark protection were granted for the expression ‘IT’S A TRUST THING’ since the combination of the words is not ordinarily used nor is likely to be used in the trade in connection with the goods and services in the application (Classes 9, 36 and 42). The application was accepted and the appeal allowed.

Examination proceedings - Absolute grounds for refusal – distinctiveness - slogan – Competence of the BoA – distinctiveness acquired by use – raised for the first time on appeal Decision of the First Board of Appeal of 24 January 2006 in Case R 0509/2005 (English) R 0509/2005-1 TAKING YOU FORWARD – (en) – the slogan conveys a self-evident message of leading, guiding, conveying others towards the future or onwards, and onward so as to make progress. The slogan is a promotional announcement; it lacks distinctive character for goods and services in Classes 9, 11, 16, 35, 36, 37, 38, 41 and 42. The applicant made a new submission to the Board of Appeal that as a result of expenditure incurred and the successful presentation of the mark applied for at the 3GSM World Congress, in Cannes , France , the relevant public will know the commercial origin of the products designated by that mark. Even though Article 7(3) CTMR was not expressly invoked, it was clear that the applicant effectively argued that the mark applied for has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it. The case was remitted to the examiner for a full appraisal of the issue of acquired distinctiveness. The appeal was dismissed

EX PARTE - Article 7(1)(b) / Article 7(3) Examination proceedings – absolute grounds for refusal – distinctiveness – bottle – design – consumer – distinctiveness acquired by use - declaration of the representative promotional material – market surveys – relevant territory Decision of the First Board of Appeal of 18 January 2006 in Case R 0666/2005 (English)

EX PARTE - Article 7(1)(b) and (c) Examination proceedings – absolute grounds for refusal – descriptiveness - distinctiveness – restriction of list of goods and services– consumer – general public - specialist public Decision of the Fourth Board of Appeal of 2 February 2006 in Case R 0311/2005 (English)

(shape of a bottle – 3D) – R 0666/2005-1 (en) – The mark applied for was the above representation of a three-dimensional bottle. The Board of Appeal stated that the distinctive character of a trade mark per se should be assessed by reference to the date on which the application for registration is filed and not to the date on which it was invented. The submission alleging the originality of the shape of the bottle cannot be taken into account in assessing the distinctive character of that three-dimensional shape. The criterion to be taken into account is the ability of the shape to distinguish goods on the market from goods of the same kind offered by competitors. The three-dimensional sign as applied for is a shape which is not sufficiently different from other shapes of bottles on the market for it to be concluded that, in

R 0311/2005-4 CROSSFADE – (en) – The Board considered that the list of goods and services should read: ‘audio and audiovisual recordings of performances’ (Class 9) and ‘entertainment services, namely live musical performances; providing information via a global computer network’’ (Class 41). The further restrictions made by the appellant limiting all the designated goods and services to those by or concerning the musical group named CROSSFADE were not accepted by the Board; the reason for this being that, pursuant to Rule 2(2) CTMIR, it is a matter of logic that the lists of goods and services may not contain, in particular, the trade mark of the applicant. Furthermore, limiting the aforementioned goods and services to those of the group CROSSFADE would lead

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to a situation where any other potential applicant could apply for, and eventually obtain, the trade mark CROSSFADE for non-CROSSFADE recordings and entertainment services. The vast majority of the English-speaking consumers of the goods and services will not attribute any specific meaning to the word ‘crossfade’. A specific technical knowledge is required for the term ‘crossfade’ to be understood and interpreted to mean ‘editing that makes a smooth transition between the two audio files which involves the edit consisting of fading out one source file while fading in the other’. This suggests that in relation to the goods and services the mark applied for is more likely to be thought of as a trade mark than a descriptive and non-distinctive term. The appeal was allowed.

Examination proceedings – absolute grounds for refusal – descriptiveness – distinctiveness –consumer – general public – specialized public Decision of the Fourth Board of Appeal of 31 January 2006 in Case R 0605/2003 (English) R 0605/2003-4 DIGITAL PERFORMER – (en) – It was held that the sign ‘ DIGITAL PERFORMER’ immediately and directly describes relevant and even essential characteristics of the goods ‘computer software for use in recording, editing, sequencing, mixing, arranging, processing and mastering digital audio and/or MIDI data’ (Class 9) and ‘user manuals, sold together with computer software for use in recording, editing, sequencing, mixing, arranging, processing and mastering digital audio and/or MIDI data’ (Class 16) to the extent that at least in part digital technologies or processes are utilised by them. The targeted consumers are likely to take the two compound elements at face value, drawing the immediate and correct conclusion that the goods concerned involve computer software which facilitates the processing of audio data digitally. Insofar as the applicant contended that ‘performer’ cannot be used in relation to inanimate objects, the Board of Appeal stated that the usage of similar personalized terms such as ‘finder’ or ‘reader’ has become commonplace in IT. The appeal was dismissed.

R 0673/2005-1 TWINEN / – (en) - The factors of similarity (goods and marks) should be examined jointly, not separately. If there is at least ‘some’ similarity between the marks, the goods should be compared too. In the area of clothing and fashion, where consumers are used to inspect the goods on offer before buying and compare qualities and brands, the visual aspect of the comparison between trade marks is important. The two marks are evidently based on the same English word, ‘twin’. The only difference is their endings. When considering the signs in their entirety, the different endings may have, for a reasonable number of consumers, a low distinctive character. It is more natural to assume that those consumers – in the three jurisdictions – will remember the two marks as ‘TWIN plus an ending’ or as possible plural forms of the word ‘twin’. The degree of similarity of the two signs, visually, aurally and conceptually (at least in English) is high and this similarity, coupled with the substantial identity of the goods, leads to the conclusion that a likelihood of confusion may exist in the three relevant territories ( Greece , Spain and the United Kingdom ). The appeal was allowed. Opposition proceedings – relative grounds of refusal – likelihood of confusion – similarity of goods – dissimilarity of marks – common element – descriptive element – visual dissimilarity Decision of the First Board of Appeal of 16 January 2006 in Case R 1041/2005-1 (English)

INTER PARTES - Article 8(1)(b) Opposition proceedings – relative grounds for refusal – likelihood of confusion – interpretation – overall assessment identity of goods and services – similarity of signs – common element – dominant element – beginning – visual similarity phonetic similarity - conceptual similarity Decision of the First Board of Appeal of 17 January 2006 in Case R 0673/2005-1 (English)

R 1041/2004-1 BODYGUARD / – (en) – The goods ‘baby carriages’ and ‘child seats for vehicles and parts therefor’ have a similar nature and purpose, they are commercialised through the same channels and are addressed to the same target consumers. Therefore, the goods, although not identical, are highly similar. In the present case, although the group of buyers may be ordinary consumers, being parents, it is likely that they, when buying products used for their babies and young children, can be expected to be very attentive. In the light of the fact that ‘BODYGUARD’, because of its conceptual content, must be considered to have a lower degree of distinctiveness than normal, the most important part of the opponent’s mark is the word ‘JANE’. In Spain ‘JANE’ will be perceived as a fantasy designation and, as such, it must be considered to be a strong trade mark element. The comprehensive differences between the marks – especially visually − outweigh the existence of the weak common element ‘BODYGUARD’. In spite of the fact that the goods are highly similar, this lesser degree of similarity between the marks eliminates the likelihood of confusion. The appeal was dismissed

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INTER PARTES - Article 8(1)(b) and Article 116(3) Appeal proceedings – admissibility - adversely affected opposition proceedings – restriction of list of goods and services – language of the proceedings – similarity of marks – visual and phonetic similarity – dissimilarity of goods Decision of the Fourth Board of Appeal 2 February 2006 in Case R 244/2005 (English) of

R 0244/2005-4 VADIS / VADDIS – (en) – In proceedings held in the second language of the CTM application, the list of goods and services must still be interpreted as to its meaning in the first language, if this is a language of the Office (as is German, in this case), in accordance with Article 116(3) CTMR. The goods ‘diagnostic systems for drives in vehicles’ are not similar to ‘computer hardware and computer software’ for the mere reason that they may contain integrated circuits to process data. The appeal is allowed.

make its own assessment. In this case, the public notary merely stated that the opponent declared before him that the mark has been used as registered. However, no supporting documents were attached to the statement of the public notary, nor were such documents filed separately by the opponent. Therefore it was impossible for the Board to examine whether the proof of use was sufficient concerning the place, time, extent and nature of the use. As far as the documents showed signs with the element ‘CORTTY’, these signs were used in a form which clearly altered the distinctive character of the trade mark as registered and on which the opposition was based. In particular, the figurative element of a feline predator has a significant impact on the earlier trade mark. Nevertheless, none of the documents illustrated, or even referred to, this device element. The appeal was dismissed.

Appeal proceedings – restriction of list of goods and services – withdrawal - apportionment of costs - guidelines Decision of the Fourth Board of Appeal 3 February 2006 in Case R 675/2005 (English) of

PROCEDURAL ISSUES Examination proceedings – restriction of list of goods and services Decision of the Second Board of Appeal 24 January 2006 in Case R 264/2005 (English) of

R 0264/2005-1 WEBCASTER – (en) – The applicant requested, in its statement of grounds of appeal, to restrict the specification of its application to the following: ‘Computer hardware and software for use in formatting and delivering multimedia content for television broadcasting or narrowcasting’ (Class 9). The proposed new specification of goods does not describe a more limited category of goods when compared with the earlier specification and therefore does not constitute a restriction. It also does not qualify as a correction pursuant to Art. 44(2) CTMR, as the original specification of goods did not contain any obvious mistakes to be corrected.

R 0675/2005-4 / – (en) – where the CTM applicant limits the list of goods and services in view of another opposition and subsequently the opponent withdraws the opposition, a sharing of costs is appropriate. In the case at hand, the Opposition Division applied Article 81(2), (3) CTMR in accordance with the Opposition Guidelines.

More News
New Website Address for the OHIM
As of 9 May 2006 , the new OHIM website address will be: www.oami.europa.eu.

Opposition proceedings - scope of opposition - proof of use nature of use – declaration – failure to provide evidence - use not as registered Decision of the Second Board of Appeal of 9 February 2006 in Case R 73/2005 (English)

The OHIM is taking all the necessary steps to ensure that all of its services are accessible via its new Web address as of that date. Both the “old” and “new” OHIM web addresses will work to allow user-access to the same information for a “migration” period of 12 months from the launch of the new Web address.

Events
R 0073/2005-2 / (CORTTY et al.) – (en) - concerning proof of use, t he opponent’s declaration before a notary that “the trade mark has been used as registered” is not sufficient on its own and has to be corroborated by evidence that allows the Board to British Day On March 17 th, the OHIM played host to the annual visit of a combined delegation of UK Patent Office officials and of UK trade mark professionals representing The Institute of Trade Mark Attorneys (ITMA) and The Chartered Institute of Patent Attorneys (CIPA).

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OAMI - HABM - OHIM - OHMI - UAMI - Newsletter 04 - 2006

These visits are aimed at offering the principal users of the OHIM’s services in the United Kingdom the opportunity to consult Office staff and management directly about current practice and procedures relating to the Community trade mark and registered Community design systems. They also provide the OHIM with a valuable communication platform where first-hand updates on recent developments in the CTM & RCD systems can be presented in person to UK professionals. The procedural issues discussed included the Office’s ebusiness systems, particularly the online databases and the possibility of electronic access to files, as well as the use of current accounts and various payment issues. As to the substantive analysis of CTM & RCD issues, discussions were raised on subjects as diverse as disclaimers, cooling-off and the scope of protection of goods and services, through to retail services and recent case-law. ECTA-OHIM Link Committee Meeting On 13 March the 17 th ECTA-OHIM Link Committee Meeting took place at the Office’s premises. The full agenda can be consulted at: http://oami.eu.int/de/office/events/default.htm Amongst many topics the OHIM’s e-business programme was discussed, particularly focusing on the calendar of forthcoming tools such as on-line access of files, e-filing of oppositions and e-payment. With regard to amendments to legislation, the tripling of e-filing further to the amended fee regulation (EC) No 2869/95 was pointed out as well as the possibility of political agreement on the EU Accession to the Hague Agreement in the course of this year. Another point on the agenda was the situation of the Boards of the Appeal whose high pace of work was mentioned by the new President, Paul Maier. The current situation of the Community Trade Mark and Community Design was discussed at length. The Office announced that all guidelines will be made available in one single place on the website. Finally, the OHIM’s performance was analysed and ECTA shared remarks and suggestions on e-filing and opposition related issues.

awareness campaigns, enforcement and penalising measures and how to overcome the threat posed by the Internet. Seminar on Industrial Design – Antiguos Alumnos Magister Lvcentinvs (AAAML) On 24 March the Asociación Antiguos Alumnos Magister Lvcentinvs (AAAML) hosted a seminar on industrial design in Madrid . The objective of the seminar was to analyse the theoretical, practical, legal and business aspects of industrial design from various points of view in both the public and private sectors. Within this context, the OHIM representative explained the outcome of the first three years of the registered community design. Global Brand Management Forum – Managing Intellectual Property (MIP) Managing Intellectual Property held the Global Brand Management Forum on 28 and 29 March focusing on the challenges the in-house counsel face in exploiting their brands worldwide. These challenges include securing effective protection against rivals and counterfeiters and dealing with restrictions placed on the use of brands by legislators and trade mark offices. Vincent O’Reilly, Director of the Department of IP Policy, presented the OHIM’s practice on novel marks such as sound, colour or smell marks. The complete list of events attended by the OHIM during March can be found at: http://oami.eu.int/en/office/events/default.htm

Visit of Mr. McCreevy, European Commissioner for the Internal Market and Services, to the OHIM
On Tuesday, 28 March 2006, the Office was visited for the first time by the Commissioner for Internal Market and Services, Mr Charlie McCreevy. During his stay in our Office, the Commissioner participated in a meeting with the Management Committee which provided him with detailed information about the Office’s development, its achievements and challenges for the future. Mr McCreevy addressed a speech to the Office personnel in which he congratulated the President and its staff for the success and the results achieved. Furthermore, the Commissioner declared that he is counting on the Office’s enthusiasm and dedication to maintain and to further improve the services provided to its users.

Annual Meeting – Institute of Trade Mark Attorneys (ITMA) The annual international meeting of the Institute of Trade Mark Attorneys (ITMA) took place in London from 22 to 24 March. ITMA is the professional body for trade mark attorneys in the United Kingdom established in 1934. The OHIM participated with three delegates who presented OHIM developments over the last 12 months.

Speech by Commissioner McCreevy to the staff of the OHIM Alicante, 28 March 2006
Mr President, Ladies and Gentlemen, It is a great pleasure for me to be here in Alicante for the first time as the Commissioner responsible for the Internal Market and to have an opportunity to speak directly to the staff of this Office. Although I cannot deny that the prospect of Spanish sunshine glinting off the Mediterranean was certainly an incentive to one now sadly used to the grey skies of Brussels , I was very

European Intellectual Property Forum On 21 and 22 March OHIM participated in the 11 th European Intellectual Property Forum organized by UNIFAB, the French anti counterfeiting association. This annual Conference provides a wide forum for debate and is a meeting point for all intellectual property professionals. Current topics focusing on new methods to combat counterfeiting were discussed including, among many others, stop piracy programs,

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pleased to accept Wubbo de Boer's invitation to visit you. I am delighted to see at first hand how you go about the business of registering Community Trade Marks and Designs. And the first thing I should say is: “Congratulations”. The Community Trade Mark and Design system is a great success. Indeed, it is an even greater success than those who first launched the idea of a Community Trade Mark could ever have imagined. Within ten years of its creation, the Office has become a benchmark for a well-organised, modern Intellectual Property office. It employs some of the world's finest trademark and design experts, combined with excellent managerial and administrative support. The figures speak for themselves: You have been able to register the very impressive number of more than 300,000 Community Trade Marks since 1996. In addition, in what is now the third year of existence of the Community design, around 160,000 Community Designs have already been registered. These figures exceed even the most optimistic predictions made at the time that the relevant regulations were adopted by the Council of Ministers. They demonstrate clearly the value to business of intellectual property rights which offer protection across the entire territory of the European Union. Such unitary titles are one pillar of a broader EU strategy on intellectual property, which is at the heart of the EU’s Lisbon Strategy on growth and jobs. Trade marks and designs are essential marketing tools for modern business in the EU internal market. Businesses throughout the Union and beyond can now rely on an efficient organisation to provide timely, effective, and inexpensive protection of some of their most valuable assets. In a world of increasing consumer sophistication, branding supported by trade marks can assist businesses of all sizes in their quest for innovation and entry into new markets. Despite the ever-increasing demands for its services, the Office has been able to improve its performance and even reduce significantly the cost to the client. I know that the Office's results over the last ten years could not have been achieved without clear-sighted leadership, substantial investment in the latest technology and the personal commitment and professionalism of its staff. I count on your enthusiasm and dedication to maintain and to further improve the service the Office provides to its users over the next 10 years, and beyond. I understand that you have set yourselves ambitious targets for further reducing the time taken to handle applications. And I was impressed to hear that the philosophy underlying the efiling business model will be extended in the near future to oppositions. These post-grant disputes need to be resolved as speedily and efficiently as possible. The number of pending appeal cases is likely to grow even further this year. The onus will be on the Boards of Appeal to reduce the existing backlog: I am confident that the members of the Boards, whether recently appointed or of long standing, will be able to work together to address this question.

Success brings its own problems. The Office is building-up an impressive financial surplus. If I were in private business, I would welcome the bonuses this might bring to me and to all of you. But as you will realise, we are working for a public body here and that sheds a different light on all the monies your hard work generates. Ideally one would like to return the surplus to those who paid for it, i.e. business. I took a first step in that direction by reducing annual fee payments, thus saving business some 40 Mio€ for 2006 and every year thereafter. Further measures may be needed. Getting the financial strategy right is not easy and will demand the attention of all of us, you here in Alicante and my services in Brussels . But it is important both for your users and the image of the Community that we do find a good solution on this. Let me conclude by underlining that I am very pleased with the good relationship between the Commission, in particular DG MARKT and the Office (OHIM) at all levels, both formally and informally. As you will know, your President, Mr. De Boer has a very cooperative and transparent working relationship with my Director General Alex Schaub and our respective services work closely together on matters of mutual interest. We have set up a programme for an exchange of staff and although this exchange may be on a small scale, it is an important signal of the good and fruitful relationship between Alicante and Brussels . Let us not forget that in the end, we all share the same interest: ensuring that there is a Community trade mark and design system which functions well for the benefit of business in Europe and promotes Europe´s competitiveness. I know that " Brussels " may sometimes seem distant and removed from you, and not only geographically. But you should be assured that I take a lively interest in the Office and all its doings. Being here today has reinforced my understanding of your achievements and of the challenges we still face. I look forward to meeting them successfully together. Thank you.

Monthly Statistical Highlights - March 2006
Community trade mark applications received Community trade mark applications published Community trade marks registered Community trade mark renewal applications Registered Community designs applications received Registered Community designs published 6,372 4,278 6,595 4,500 3,645 6,472

* Statistical data for the month in course is not definitive. Figures may vary slightly after consolidation.

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OAMI - HABM - OHIM - OHMI - UAMI - Newsletter 04 - 2006

The

OHIM

E-Business

Roundup

(2006)

Statistical summary The use of the CTM e-filing web form has increased to 68% in March.

From 2 May 2006 , a new section dedicated to renewals will appear in the detailed trade mark page of CTM-ONLINE. The following information will be available:

• • •

expiry date type of renewal requested (partial or total) the status of the renewal request and the history of statuses. The main statuses are “need to renew communicated” that corresponds to the sending of the notification of expiry, “renewal request received”, “renewal fee paid”, ”renewed” and “expired”. In addition to this information, the publication of renewals in part D of the CTM Bulletin will be accessible via the Publication Section of CTM-ONLINE.

To date over 14,400 CTM renewal applications have been received electronically. The number of MYPAGE users has increased to over 1200, 78% of which are e-communication users. Status of current and future projects: CTM-ONLINE – Renewal Information - Where to find information about the status of renewed CTMs? November 2005 saw the beginning of the period for renewing CTMs which expire in April 2006. During this time, the OHIM has received more than 10,000 CTM requests, most of them via the e-renewal tool.

•

A list of identified incidents and proposed workarounds is published on the OHIM website: http://oami.eu.int/en/mark/marque/pdf/workaround.pdf Should you require further assistance, or, if the incident is not listed, the OHIM information centre can be contacted.

Future Online Services Service - Filing oppositions electronically: The OHIM will provide an electronic opposition form similar to the existing one for Community trade mark applications. MYPAGE users who have opted for e-communication will receive the first letters via their MYPAGE MailBox. Status - This service is being tested externally in April Service - B2B e-filing CTM The objective of this service is to set up a system allowing the direct exchange of CTM applications from the IP management software used by the applicants and the OHIM systems. This tool will use a TM-XML (www.tm-xml.org) format and offer a web service or FTP for the transmission of data. Status - The OHIM has set up its system and the testing phase has started from 11/2005 with 6 users. Service - CTM consultation tool (CTM-ONLINE 2006) The current CTM-ONLINE will be improved with enhanced information concerning renewal. Status - This service should be available at beginning May 2006 Service - Payment by credit card (e-payment)

The OHIM is currently receiving many queries via telephone and e-mail regarding the status of renewal requests. This information will soon by available in CTM-ONLINE.

Status - Service is being tested and should be available in May 2006 Service - Search for a representative for CTM or RCD procedures (FindRep):

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OAMI - HABM - OHIM - OHMI - UAMI - Newsletter 04 - 2006

The current CTM-AGENT database will be improved offering enhanced search criteria. MYPAGE users will have the possibility to change personal details directly. Status - This service is in development Service - Trade mark classification help tool (EUROCLASS) The OHIM is working together with the EU IP Offices to develop an online service to help with the classification of goods and services. This tool will contain all the accepted classification terms of the participating offices. Status - This service is in its pilot phase with the first volunteer offices (UKPTO, Swedish Office). The first pilot should be available in September 2006. Service - Electronic filing of RCD applications The current RCD e-filing service will be significantly improved with a view to solving the problem of large attachments, among other things. RCD e-filing will also be accessible through MYPAGE and changes will be made to harmonise it with CTM e-filing. Status - The OHIM is currently defining the scope of the service. Service Online access to CTM files: CTM file documents will be viewable through CTM-ONLINE. A restricted access is applied to documents of unpublished CTM. Mechanism have been put in place to ensure confidentiality of documents indicated as such. MYPAGE users will also have the possibility to request inspection of files electronically. Status - This service is in development following initial delays.

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