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janvāris 21, 2022 Par EUIPO

Public availability of decisions refusing EUTM applications on absolute grounds


When the current revision cycle of the Guidelines for Examination of European Union trade marks (EUTM) and registered Community designs is completed, a new version of the Guidelines is planned to enter into force during March 2022 by a Decision of the Executive Director. Any changes of practice will take effect on the date of entry into force and it is important, therefore, for users to be aware of them beforehand. For this reason, in due course, the Office will highlight the main items under revision in the new edition of the Guidelines.

One of the proposed changes concerns the publication of decisions refusing an EUTM application on absolute grounds. With this change, those decisions issued after the entry into force of the new Guidelines will be made available in the eSearch case-law database the day after their notification irrespective of whether the decision becomes final. If approved, the change will fully align the manner in which these decisions are made publicly available in its eSearch case-law database with that of other decisions of the Office (opposition, cancellation, appeal, etc.).

In practice, this will alter the consequences of withdrawing an EUTM application during the two-month appeal period following the receipt of a refusal decision. Withdrawal in this period will still be possible (and the EUTM will appear as ‘withdrawn’ instead of ‘refused’ in eSearch Plus database), however the change will mean that the refusal decision will be publicly available in the eSearch case law database. While the Office will take note of the withdrawal and close the case, the decision itself is not revoked and may still produce effects. The legal effects can still be enforced, for example, by blocking the conversion of the EUTM into a national mark under the provisions of Article 139(2)(b) EUTMR, where the grounds for refusal of registration on which the decision is based preclude protection in a particular Member State.

Currently, such decisions are not made available in this database if the EUTM is withdrawn before they becomes final. The proposal is to fully comply with the EUTM Regulation, specifically Article 113, which establishes that decisions of the Office shall be made available to the general public, and it is also in the interest of greater transparency and predictability for the benefit of all users.

While the decision itself will be made publicly available in the eSearch case law database where the EUTM is totally refused or withdrawn during the appeal period, pursuant to Article 113(1) EUTMR, the content of the EUTM file (e.g. observations received, deficiencies issued, etc.) will not be open for public inspectionunless consent is granted, pursuant to Article 114(1) EUTMR.

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