Council Regulation (EC) No 422/2004 of 19 February 2004 amending Regulation (EC) No 40/94 on the Community trade mark (Text with EEA relevance)
Date: 2004-02-19
Institutions: Council of the European Union
Subjects: EU trade mark, trade-mark law

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(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 422/2004

of 19 February 2004

amending Regulation (EC) No 40/94 on the Community trade mark

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 308 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

(5)

(6)

Whereas:

measures should be provided with a view to improving
the quality of the search reports, ensuring greater unifor-
mity by using a standard form and laying down their
essential contents.

Certain measures should be taken in order to give the
Boards of Appeal additional means of speeding up their
decisions and improving their operation.

The experience acquired in the application of the system
highlighted the possibility of improving certain aspects
of the procedure. Consequently, certain points should be
amended and others inserted in order to offer users a
higher-quality product which is still competitive,

(1)

(2)

(3)

(4)

Council Regulation (EC) No 40/94 of 20 December
1993 on the Community trade mark (3), set up a unitary
the
system of protection of
Member States via Community registration. This system
has generally fulfilled users' expectations satisfactorily. It
has also had a positive effect on the effective achieve-
ment of the internal market.

trade marks throughout

The functioning of the system has made it possible to
identify other aspects which could clarify and further
supplement it, thereby making it possible to improve the
effectiveness of the system, increase the value it adds and
anticipate, as of now, the consequences of additional
members in future, without it being necessary to change
the substance of the system, which has proven itself to
be perfectly valid with regard to the objectives set.

The Community trade mark system should be made
accessible to all, without any requirement of reciprocity,
equivalence and/or nationality. This would also encou-
rage trade on the world market. Such requirements
make the system complex, inflexible and ineffective. In
addition, in the context of the new Community design
system, the Council took a flexible line on this question.

In order to rationalise the procedure, the search system
should be amended. It should remain compulsory for
Community trade marks, but it should be made optional,
subject to the payment of a fee, for searches in the trade
mark registers of the Member States which notified their
own decision to carry out such a search. Furthermore,

(1) Opinion delivered on 23 September 2003 (not yet published in the

Official Journal).

(2) OJ C 208, 3.9.2003, p. 7.
(3) OJ L 11, 14.1.1994, p. 1. Regulation as last amended by Regulation

(EC) No 1992/2003 (OJ L 296, 14.11.2003, p. 1).

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 40/94 is hereby amended as follows:

1. Article 5 shall be replaced by the following:

‘Article 5

Persons who can be proprietors of Community trade
marks

including authorities estab-
Any natural or legal person,
lished under public law, may be the proprietor of a Com-
munity trade mark.’;

2.

in Article 7(1), the following point shall be added:

‘(k) trade marks which contain or consist of a designation
of origin or a geographical
indication registered in
accordance with Regulation (EEC) No 2081/92 when
they correspond to one of the situations covered by
Article 13 of the said Regulation and regarding the
same type of product, on condition that the applica-
tion for
the trade mark has been
submitted after the date of filing with the Commission
of the application for registration of the designation of
origin or geographical indication.’;

registration of

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3. In Article 8(4), the introductory subparagraph shall be

replaced by the following:

‘4.
Upon opposition by the proprietor of a non-regis-
tered trade mark or of another sign used in the course of
trade of more than mere local significance, the trade mark
applied for shall not be registered where and to the extent
that, pursuant to the Community legislation or the law of
the Member State governing that sign:’;

4. Article 21 shall be replaced by the following:

‘Article 21

Insolvency proceedings

The only insolvency proceedings in which a Com-
1.
munity trade mark may be involved are those opened in
the Member State in the territory of which the debtor has
his centre of main interests.

However, where the debtor is an insurance undertaking or
a credit institution as defined in Directives 2001/17/EC (*)
and 2001/24/EC (**),
the only insolvency
respectively,
proceedings in which a Community trademark may be
involved are those opened in the Member State where that
undertaking or institution has been authorised.

2.
In the case of joint proprietorship of a Community
trade mark, paragraph 1 shall apply to the share of the
joint proprietor.

3. Where a Community trade mark is involved in insol-
vency proceedings, on request of the competent national
authority an entry to this effect shall be made in the
Register and published in the Community Trade Marks
Bulletin referred to in Article 85.

(*) Directive 2001/17/EC of the European Parliament and
of the Council of 19 March 2001 on the reorganisation
and winding-up of insurance undertakings (OJ L 110,
20.4.2001, p. 28).

(**) Directive 2001/24/EC of the European Parliament and
of the Council of 4 April 2001 on the reorganisation
and winding up of credit
institutions (OJ L 125,
5.5.2001, p. 15).’;

5. Article 25(3) shall be replaced by the following:

‘3.
Applications referred to in paragraph 2 which reach
the Office more than two months after filing shall be
deemed to have been filed on the date on which the appli-
cation reached the Office.’;

6. Article 35(1) shall be replaced by the following:

contained within them, may claim the seniority of the
earlier trade mark in respect of the Member State in or for
which it was registered.’;

7. Article 36(1)(b) shall be replaced by the following:

‘(b) the Community trade mark application complies with
the conditions laid down in this Regulation and with
the conditions laid down in the Implementing Regu-
lation.’;

8. Article 37 shall be deleted;

9. Article 39 shall be replaced by the following:

‘Article 39

Search

1.
Once the Office has accorded a date of filing, it shall
draw up a Community search report citing those earlier
Community trade marks or Community trade mark appli-
cations discovered which may be invoked under Article 8
against
the Community trade mark
applied for.

the registration of

2. Where, at the time of filing a Community trade mark
application, the applicant requests that a search report also
be prepared by the central
industrial property offices of
the Member States and where the appropriate search fee
has been paid within the time-limit for the payment of the
filing fee, the Office shall, as soon as a Community trade
mark application has been accorded a date of
filing,
transmit a copy thereof to the central industrial property
office of each Member State which has informed the Office
of its decision to operate a search in its own register of
trade marks in respect of Community trade mark applica-
tions.

3.
Each of the central industrial property offices referred
to in paragraph 2 shall communicate to the Office within
two months as from the date on which it received the
Community trade mark application a search report which
shall either cite those earlier national trade marks or trade
mark applications discovered which may be invoked under
Article 8 against the registration of the Community trade
mark applied for, or state that the search has revealed no
such rights.

4.
The search reports referred to in paragraph 3 shall
be prepared on a standard form drawn up by the Office,
after consulting the Administrative Board. The essential
contents of this form shall be set out in the Implementing
Regulation provided for in Article 157(1).

The proprietor of a Community trade mark who is
‘1.
the proprietor of an earlier identical trade mark registered
in a Member State, including a trade mark registered in the
Benelux countries or of an earlier identical trade mark,
with an international registration effective in a Member
State, for goods or services which are identical to those for
trade mark has been registered, or
which the earlier

An amount shall be paid by the Office to each
5.
central
industrial property office for each search report
provided by that office in accordance with paragraph 3.
The amount, which shall be the same for each office, shall
be fixed by the Budget Committee by means of a decision
adopted by a majority of three-quarters of the representa-
tives of the Member States.

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The Office shall transmit without delay to the appli-
6.
cant
the Community trade mark the Community
for
search report and any requested national search reports
received within the time limit laid down in paragraph 3.

Upon publication of

the Community trade mark
7.
application, which may not take place before the expiry of
a period of one month as from the date on which the
Office transmits the search reports to the applicant, the
Office shall
inform the proprietors of any earlier Com-
munity trade marks or Community trade mark applications
cited in the Community search report of the publication of
the Community trade mark application.’;

10. Article 40 shall be replaced by the following:

‘Article 40

Publication of the application

1.
If the conditions which the application for a Com-
munity trade mark must satisfy have been fulfilled and if
the period referred to in Article 39(7) has expired, the
application shall be published to the extent that it has not
been refused pursuant to Article 38.

The division shall take effect on the date on which it
5.
is recorded in the files kept by the Office concerning the
original application.

All requests and applications submitted and all fees
6.
paid with regard to the original application prior to the
date on which the Office receives the declaration of divi-
sion are deemed also to have been submitted or paid with
regard to the divisional application or applications. The
fees for the original application which have been duly paid
prior to the date on which the declaration of division is
received shall not be refunded.

The divisional application shall preserve the filing
7.
date and any priority date and seniority date of the original
application.’;

13. the title of Title V shall be replaced by the following:

‘DURATION, RENEWAL, ALTERATION AND DIVISION OF
COMMUNITY TRADE MARKS’;

14. the following Article shall be inserted:

2. Where, after publication, the application is refused
under Article 38, the decision that it has been refused shall
be published upon becoming final.’;

‘Article 48a

Division of the registration

11.

in Title IV, the title of Section 5 shall be replaced by the
following:

‘WITHDRAWAL, RESTRICTION, AMENDMENT AND DIVI-
SION OF THE APPLICATION’;

12. the following Article shall be inserted:

‘Article 44a

Division of the application

the

The

applicant may divide

1.
application by
declaring that some of the goods or services included in
the original application will be the subject of one or more
divisional applications. The goods or services in the divi-
sional application shall not overlap with the goods or
services which remain in the original application or those
which are included in other divisional applications.

2.

The declaration of division shall not be admissible:

(a) if, where an opposition has been entered against the
original application, such a divisional application has
the effect of introducing a division amongst the goods
or services against which the opposition has been
directed, until the decision of the Opposition Division
has become final or the opposition proceedings are
finally terminated otherwise;

(b) during the periods laid down in the Implementing

Regulation.

The declaration of division must comply with the

3.
provisions set out in the Implementing Regulation.

1.
The proprietor of the Community trade mark may
divide the registration by declaring that some of the goods
or services included in the original registration will be the
subject of one or more divisional registrations. The goods
or services in the divisional registration shall not overlap
with the goods or services which remain in the original
registration or those which are included in other divisional
registrations.

2.

The declaration of division shall not be admissible:

(a) if, where an application for revocation of rights or for
a declaration of invalidity has been entered against the
original registration, such a divisional declaration has
the effect of introducing a division amongst the goods
or services against which the application for revocation
of rights or for a declaration of invalidity is directed,
the Cancellation Division has
until
become final or the proceedings are finally terminated
otherwise;

the decision of

(b) if, where a counterclaim for

revocation or

for a
declaration of invalidity has been entered in a case
before a Community trade mark court, such a divi-
sional declaration has the effect of introducing a divi-
sion amongst the goods or services against which the
counterclaim is directed, until the mention of the Com-
munity trade mark court's judgement is recorded in
the Register pursuant to Article 96(6).

The declaration of division must comply with the

3.
provisions set out in the Implementing Regulation.

4.
The declaration of division shall be subject to a fee.
The application shall be deemed not to have been made
until the fee has been paid.

4.
The declaration of division shall be subject to a fee.
The declaration shall be deemed not to have been made
until the fee has been paid.

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The division shall take effect on the date on which it

5.
is entered in the Register.

6.
All requests and applications submitted and all fees
paid with regard to the original registration prior to the
date on which the Office receives the declaration of divi-
sion shall be deemed also to have been submitted or paid
with regard to the divisional registration or registrations.
The fees for the original registration which have been duly
paid prior to the date on which the declaration of division
is received shall not be refunded.

7.
The divisional registration shall preserve the filing
date and any priority date and seniority date of the original
registration.’;

15.

in Article 50(1), point (d) shall be deleted;

16. Article 51(1)(a) shall be replaced by the following:

‘(a) where the Community trade mark has been registered

contrary to the provisions of Article 7;’

17. Article 52(2) shall be replaced by the following:

‘2.
A Community trade mark shall also be declared
invalid on application to the Office or on the basis of a
counterclaim in infringement proceedings where the use of
such trade mark may be prohibited pursuant to another
earlier right, and in particular:

(a) a right to a name;

(b) a right of personal portrayal;

(c) a copyright;

is
1. Where the party which has lodged the appeal
opposed by another party and if the department whose
decision is contested considers the appeal to be admissible
and well founded, it shall rectify its decision.

2.
The decision may only be rectified if the department
whose decision is contested notifies the other party of its
intention to rectify it, and that party accepts it within two
months of the date on which it received the notification.

3.
If, within two months of receiving the notification
referred to in paragraph 2, the other party does not accept
that the contested decision is to be rectified and makes a
declaration to that effect or does not make any declaration
within the period laid down, the appeal shall be remitted
to the Board of Appeal without delay, and without
comment as to its merit.

if

However,

4.
the department whose decision is
contested does not consider the appeal to be admissible
and well founded within one month after receipt of the
taking the
statement of grounds,
measures provided for in paragraphs 2 and 3, remit the
appeal to the Board of Appeal without delay, and without
comment as to its merit.’;

instead of

shall,

it

21. the following Article shall be inserted:

‘Article 77a

(d) an industrial property right;

Revocation of decisions

the Community
under
governing the protection.’;

legislation or national

law

18. Article 56(6) shall be replaced by the following:

A record of the Office's decision on the application
‘6.
for revocation of rights or for a declaration of invalidity
shall be entered in the Register once it has become final.’;

19. Article 60 shall be replaced by the following:

‘Article 60

Revision of decisions in ex parte cases

1.
If the party which has lodged the appeal is the sole
party to the procedure, and if the department whose deci-
sion is contested considers the appeal to be admissible and
well founded, the department shall rectify its decision.

2.
If the decision is not rectified within one month after
receipt of the statement of grounds, the appeal shall be
remitted to the Board of Appeal without delay, and
without comment as to its merit.’;

20. the following Article shall be inserted:

‘Article 60a

Revision of decisions in inter partes cases

1. Where the Office has made an entry in the Register
or taken a decision which contains an obvious procedural
error attributable to the Office,
it shall ensure that the
entry is cancelled or the decision is revoked. Where there
is only one party to the proceedings and the entry or the
act affects its rights, cancellation or revocation shall be
determined even if the error was not evident to the party.

2.
Cancellation or revocation as referred to in paragraph
1 shall be determined, ex officio or at the request of one of
the parties to the proceedings, by the department which
made the entry or took the decision. Cancellation or revo-
cation shall be determined within six months from the
date on which the entry was made in the Register or the
decision was taken, after consultation with the parties to
the proceedings and any proprietor of rights to the Com-
munity trade mark in question that are entered in the
Register.

3.
This Article shall be without prejudice to the right of
the parties to submit an appeal under Articles 57 and 63,
or to the possibility, under the procedures and conditions
laid down by the Implementing Regulation referred to in
Article 157(1), of correcting any linguistic errors or errors
of transcription and obvious errors in the Office's decisions
or errors attributable to the Office in registering the trade
mark or in publishing its registration.’;

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22. Article 78(5) shall be replaced by the following:

25. Article 88 shall be amended as follows:

‘5.
This Article shall not be applicable to the time limits
referred to in paragraph 2 of this Article, Article 42(1) and
(3) and Article 78a.’;

23. the following Article shall be inserted:

‘Article 78a

Continuation of proceedings

1.
An applicant for or proprietor of a Community trade
mark or any other party to proceedings before the Office
who has omitted to observe a time limit vis-à-vis the
Office may, upon request, obtain the continuation of
proceedings, provided that at the time the request is made
the omitted act has been carried out. The request for conti-
nuation of proceedings shall be admissible only if it is
presented within two months following the expiry of the
unobserved time limit. The request shall not be deemed to
the
have been filed until
proceedings has been paid.

the fee for continuation of

This Article shall not be applicable to the time limits
2.
laid down in Article 25(3), Article 27, Article 29(1),
Article 33(1), Article 36(2), Article 42, Article 43, Article
47(3), Article 59, Article 60a, Article 63(5), Article 78,
Article 108, or to the time limits laid down in this Article
or the time limits laid down by the Implementing Regu-
lation referred to in Article 157(1) for claiming priority
within the meaning of Article 30, exhibition priority
within the meaning of Article 33 or seniority within the
meaning of Article 34 after the application has been filed.

The department competent to decide on the omitted

3.
act shall decide upon the application.

If

the Office accepts the application,

4.
the conse-
quences of having failed to observe the time limit shall be
deemed not to have occurred.

If the Office rejects the application, the fee shall be

5.
refunded.’;

24. Article 81(6) shall be replaced by the following:

‘6.
The Opposition Division or Cancellation Division or
Board of Appeal shall fix the amount of the costs to be
paid pursuant to the preceding paragraphs when the costs
to be paid are limited to the fees paid to the Office and the
representation costs. In all other cases, the registry of the
Board of Appeal or a member of the staff of the Opposi-
tion Division or Cancellation Division shall fix the amount
of the costs to be reimbursed on request. The request is
admissible only within two months of the date on which
the decision for which an application was made for the
costs to be fixed became final. The amount so determined
may be reviewed by a decision of the Opposition Division
or Cancellation Division or Board of Appeal on a request
filed within the prescribed period.’;

(a) the first sentence of paragraph 3 shall be replaced by

the following:

‘Natural or legal persons having their domicile or prin-
cipal place of business or a real and effective industrial
or commercial establishment in the Community may
be represented before the Office by an employee.’;

(b) the following paragraph shall be added:

The

Implementing Regulation shall

‘4.
specify
whether and under what conditions an employee must
file with the Office a signed authorisation for insertion
on the file.’;

26. Article 89 shall be amended as follows:

(a) in paragraph 1, point b shall be replaced by the

following:

‘(b) professional representatives whose names appear
on the list maintained for this purpose by the
Office. The Implementing Regulation shall specify
whether and under what conditions the represen-
tatives before the Office must file with the Office a
signed authorisation for insertion on the file.’;

(b) in paragraph 2(c) the first sentence shall be replaced by

the following:

‘(c) he must be entitled to represent natural or legal
persons in trade mark matters before the central
industrial property office of a Member State.’;

27. Article 96(5) shall be replaced by the following:

‘5.

Article 56(2) to (5) shall apply.’;

28.

in Article 108 paragraphs 4, 5 and 6 shall be replaced by
the following:

‘4.
In cases where a Community trade mark application
is deemed to be withdrawn, the Office shall send to the
three
applicant a communication fixing a period of
months from the date of that communication in which a
request for conversion may be filed.

5. Where the Community trade mark application is
withdrawn or the Community trade mark ceases to have
effect as a result of a surrender being recorded or of failure
to renew the registration, the request for conversion shall
be filed within three months after the date on which the
Community trade mark application has been withdrawn or
on which the Community trade mark ceases to have effect.

6. Where the Community trade mark application is
refused by decision of the Office or where the Community
trade mark ceases to have effect as a result of a decision of
the Office or of a Community trade mark court,
the
request for conversion shall be filed within three months
the date on which that decision acquired the
after
authority of a final decision.’;

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29. Article 109(3) shall be replaced by the following:

(b) by the Board handling the case.

The Office shall check whether

‘3.
the conversion
requested fulfils the conditions set out in this Regulation,
in particular Article 108(1), (2), (4), (5) and (6), and para-
graph 1 of this Article, together with the formal conditions
laid down in the Implementing Regulation. If these condi-
tions are fulfilled, the Office shall transmit the request for
conversion to the industrial property offices of
the
Member States specified therein.’;

30. Article 110(1) shall be replaced by the following:

Any central industrial property office to which the
‘1.
request for conversion is transmitted may obtain from the
Office any additional information concerning the request
enabling that office to make a decision regarding the
national trade mark resulting from the conversion.’;

4.
The composition of the enlarged Board and the
rules on referrals to it shall be laid down pursuant to
the rules of procedure of the Boards referred to in
Article 157(3).

5.
To determine which specific cases fall under the
authority of a single member, account should be taken
of the lack of difficulty of the legal or factual matters
raised, the limited importance of the individual case or
the absence of other specific circumstances. The deci-
sion to confer a case on one member in the cases
referred to shall be adopted by the Board handling the
case. Further details shall be laid down in the rules of
procedure of the Boards referred to in Article 157(3).’;

31.

in the second sentence of Article 118(3),
the phrase
‘within 15 days’ shall be replaced by the phrase ‘within
one month’and, in the third sentence, the phrase ‘within
one month’ shall be replaced by the phrase ‘within three
months’;

‘Article 131

Independence of
Appeal

the members of

the Boards of

35. Article 131 shall be replaced by the following:

32. Article 127(2) shall be replaced by the following:

‘2.
The decisions of the Opposition Divisions shall be
taken by three-member groups. At least one member shall
be legally qualified. In certain specific cases provided for in
the Implementing Regulation, the decisions shall be taken
by a single member.’;

33. Article 129(2) shall be replaced by the following:

‘2.
The decisions of the Cancellation Divisions shall be
taken by three-member groups. At least one member shall
be legally qualified. In certain specific cases provided for in
the Implementing Regulation, the decisions shall be taken
by a single member.’;

34. Article 130 shall be amended as follows:

(a) paragraph 2 shall be replaced by the following:

‘2.
The decisions of the Boards of Appeal shall be
taken by three members, at least two of whom are
legally qualified.
In certain specific cases, decisions
shall be taken by an enlarged Board chaired by the
President of
the Boards of Appeal or by a single
member, who must be legally qualified.’;

(b) the following paragraphs shall be added:

‘3.
In order to determine the special cases which fall
under the jurisdiction of the enlarged Board, account
should be taken of the legal difficulty or the impor-
tance of the case or of special circumstances which
justify it. Such cases may be referred to the enlarged
Board:

(a) by the authority of the Boards of Appeal set up in
the
accordance with the rules of procedure of
Boards referred to in Article 157(3), or

The President of

1.
the Boards of Appeal and the
chairmen of the Boards shall be appointed, in accordance
with the procedure laid down in Article 120 for the
appointment of the President of the Office, for a term of
five years. They may not be removed from office during
this term, unless there are serious grounds for such
removal and the Court of Justice, on application by the
institution which appointed them, takes a decision to this
effect. The term of office of the President of Boards of
Appeal and the chairmen of the Boards may be renewed
for additional five-year periods, or until retirement age if
this age is reached during the new term of office.

The President of the Boards of Appeal shall, inter alia, have
managerial and organisational powers, principally to:

(a) chair the authority of the Boards of Appeal responsible
for laying down the rules and organising the work of
the Boards, which authority is provided for in the rules
the Boards referred to in Article
of procedure of
157(3);

(b) ensure the implementation of the authority's decisions;

(c) allocate cases to a Board on the basis of objective
criteria determined by the authority of the Boards of
Appeal;

(d) forward to the President of

the Office the Boards'
expenditure requirements, with a view to drawing up
the expenditure estimates.

The President of the Boards of Appeal shall chair the
enlarged Board.

Further details shall be laid down in the rules of procedure
of the Boards referred to in Article 157(3).

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The members of

the Boards of Appeal shall be
2.
appointed by the Administrative Board for a term of five
years. Their term of office may be renewed for additional
five-year periods, or until retirement age if that age is
reached during the new term of office.

3.
The members of the Boards of Appeal may not be
removed from office unless there are serious grounds for
such removal and the Court of Justice, after the case has
been referred to it by the Administrative Board on the
recommendation of the President of the Boards of Appeal,
after consulting the chairman of the Board to which the
member concerned belongs, takes a decision to this effect.

The President of

4.
the Boards of Appeal and the
chairmen and members of the Boards of Appeal shall be
independent. In their decisions they shall not be bound by
any instructions.

The President of

5.
the Boards of Appeal and the
chairmen and members of the Boards of Appeal may not
be examiners or members of the Opposition Divisions,
Administration of Trade Marks and Designs and Legal
Division or Cancellation Divisions.’;

36. Article 142a shall become Article 159a;

37.

in Article 150, paragraph 3 shall be replaced by the
following:

‘3.

Article 39(3) to (6) shall apply mutatis mutandis.’;

38. In Article 157(2), points (1) and (4) shall be deleted.

Article 2

This Regulation shall enter

1.
into force on the day
following that of its publication in the Official Journal of the
European Union.

2.
Points 11 to 14, 21, 23 to 26 and 32 to 36 of Article 1
shall apply from a date which shall be laid down by the
Commission and published in the Official Journal of the European
Union, when the necessary implementing measures have been
adopted.

3.

Point 9 of Article 1 shall apply from 10 March 2008.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 19 February 2004.

For the Council

The President

M. McDOWELL