Article 157 Functions of the Executive Director
1. The Office shall be managed by the Executive Director. The Executive Director shall be accountable to the Management Board. 2. Without prejudice to the powers of the Commission, the Management Board, and the Budget Committee, the Executive Director shall be independent in the performance of his duties and shall neither seek nor take instructions from a government or from any other body. 3. The Executive Director shall be the legal representative of the Office. 4. The Executive Director shall have in particular the following functions, which may be delegated: (a) taking all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Office; (b) implementing the decisions adopted by the Management Board; (c) preparing a draft annual work programme indicating estimated human and financial resources for each activity, and submitting it to the Management Board after consultation of the Commission; (d) submitting to the Management Board proposals pursuant to Article 152(2); (e) preparing a draft multiannual strategic programme, including the Office's strategy for international cooperation, and submitting it to the Management Board after consultation of the Commission and following an exchange of views with the relevant committee in the European Parliament; (f) implementing the annual work programme and the multiannual strategic programme and reporting to the Management Board on their implementation; (g) preparing the annual report on the Office's activities and presenting it to the Management Board for approval; (h) preparing a draft multiannual staff policy plan and submitting it to the Management Board after consultation of the Commission; (i) preparing an action plan following-up on the conclusions of the internal or external audit reports and evaluations, as well as following up on the investigations of the OLAF, and reporting on progress twice a year to the Commission and to the Management Board; (j) protecting the financial interests of the Union by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by recovering amounts wrongly paid and, where appropriate, by imposing effective, proportionate and dissuasive administrative and financial penalties; (k) preparing an anti-fraud strategy for the Office and presenting it to the Budget Committee for approval; (l) in order to ensure uniform application of the Regulation, referring, where appropriate, to the enlarged Board of Appeal (‘the Grand Board’) questions on a point of law, in particular if the Boards of Appeal have issued diverging decisions on the point; (m) drawing up estimates of the revenue and expenditure of the Office and implementing the budget; (n) exercising the powers entrusted to him in respect of staff by the Management Board under Article 153(1)(h); (o) exercising the powers conferred on him under Articles 31(3), 34(5), 35(3), 94(2), 97(5), Articles 98, 100, 101, Articles 111(4), 112(3), 114(5), Articles 115, 116, Articles 120(4), 146(10), Article 178, Articles 179(1) and 180(2), and Article 181 in accordance with the criteria set out in this Regulation and in the acts adopted pursuant to this Regulation. 5. The Executive Director shall be assisted by one or more Deputy Executive Directors. If the Executive Director is absent or indisposed, the Deputy Executive Director or one of the Deputy Executive Directors shall replace him in accordance with the procedure laid down by the Management Board.
Article 158 Appointment and removal of the Executive Director and extension of term of office
1. The Executive Director shall be engaged as a temporary agent of the Office under Article 2(a) of the Conditions of Employment. 2. The Executive Director shall be appointed by the Council by simple majority, from a list of candidates proposed by the Management Board, following an open and transparent selection procedure. Before being appointed, the candidate selected by the Management Board may be invited to make a statement before any competent European Parliament committee and to answer questions put by its members. For the purpose of concluding the contract with the Executive Director, the Office shall be represented by the chairperson of the Management Board. The Executive Director may be removed from office only upon a decision of the Council acting on a proposal from the Management Board. 3. The term of office of the Executive Director shall be five years. By the end of that period, the Management Board shall undertake an assessment which takes into account an evaluation of the performance of the Executive Director and the Office's future tasks and challenges. 4. The Council, taking into account the assessment referred to in paragraph 3, may extend the term of office of the Executive Director once and for no more than five years. 5. An Executive Director whose term of office has been extended may not participate in another selection procedure for the same post at the end of his overall term of office. 6. The Deputy Executive Director or Deputy Executive Directors shall be appointed or removed from office as provided for in paragraph 2, after consultation of the Executive Director and, where applicable, the Executive Director-elect. The term of office of the Deputy Executive Director shall be five years. It may be extended once and for no more than five years by the Council, after consultation of the Executive Director.
Article 159 Competence
For taking decisions in connection with the procedures laid down in this Regulation, the following shall be competent: (a) examiners; (b) Opposition Divisions; (c) a department in charge of the Register; (d) Cancellation Divisions; (e) Boards of Appeal; (f) any other unit or person appointed by the Executive Director to that effect.
Article 160 Examiners
An examiner shall be responsible for taking decisions on behalf of the Office in relation to an application for registration of an EU trade mark, including the matters referred to in Articles 41, 42, 76 and 85, except in so far as an Opposition Division is responsible.
Article 161 Opposition Divisions
1. An Opposition Division shall be responsible for taking decisions on an opposition to an application to register an EU trade mark. 2. The decisions of the Opposition Divisions shall be taken by three-member groups. At least one member shall be legally qualified. Decisions relating to costs or to procedures shall be taken by a single member. The Commission shall adopt implementing acts specifying the exact types of decisions that are to be taken by a single member. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 162 Department in charge of the Register
1. The Department in charge of the Register shall be responsible for taking decisions in respect of entries in the Register. 2. It shall also be responsible for keeping the list of professional representatives referred to in Article 120(2). 3. The decisions of the Department shall be taken by a single member.
Article 163 Cancellation Divisions
1. A Cancellation Division shall be responsible for taking decisions in relation to: (a) applications for the revocation or a declaration of invalidity of an EU trade mark; (b) requests for the assignment of an EU trade mark as provided for in Article 21. 2. The decisions of the Cancellation Divisions shall be taken by three-member groups. At least one member shall be legally qualified. Decisions relating to costs or to procedures as specified in the acts adopted pursuant to Article 161(2) shall be taken by a single member.
Article 164 General Competence
Decisions required under this Regulation which do not fall within the competence of an examiner, an Opposition Division, a Cancellation Division or the Department in charge of the Register, shall be taken by any official or unit appointed by the Executive Director for that purpose.
Article 165 Boards of Appeal
1. The Boards of Appeal shall be responsible for deciding on appeals from decisions taken pursuant to Articles 160 to 164. 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 the Grand Board chaired by the President of the Boards of Appeal or by a single member, who shall be legally qualified. 3. In order to determine the special cases which fall under the jurisdiction of the Grand Board, account should be taken of the legal difficulty or the importance of the case or of special circumstances which justify it. Such cases may be referred to the Grand Board: (a) by the authority of the Boards of Appeal referred to in Article 166(4)(a); or (b) by the Board handling the case. 4. The Grand Board shall also be responsible for giving reasoned opinions on questions of law referred to it by the Executive Director pursuant to Article 157(4)(l). 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 decision to confer a case on one member in the cases referred to shall be adopted by the Board handling the case.
Article 166 Independence of the members of the Boards of Appeal
1. The President of the Boards of Appeal and the chairpersons of the Boards shall be appointed, in accordance with the procedure laid down in Article 158 for the appointment of the Executive Director, for a term of five years. They shall 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. 2. The term of office of the President of the Boards of Appeal may be extended once for one additional five-year period, or until retirement age if this age is reached during the new term of office, after a prior positive evaluation of his performance by the Management Board. 3. The term of office of the chairpersons of the Boards may be extended for additional five-year periods, or until retirement age if this age is reached during the new term of office, after a prior positive evaluation of their performance by the Management Board, and after consulting the President of the Boards of Appeal. 4. The President of the Boards of Appeal shall have the following managerial and organisational functions: (a) chairing the Presidium of the Boards of Appeal (‘the Presidium’), responsible for laying down the rules and organising the work of the Boards; (b) ensuring the implementation of the decisions of the Presidium; (c) allocating cases to a Board on the basis of objective criteria determined by the Presidium; (d) forwarding to the Executive Director the Boards' expenditure requirements, with a view to drawing up the expenditure estimates. The President of the Boards of Appeal shall chair the Grand Board. 5. The members of the Boards of Appeal shall be appointed by the Management Board for a term of five years. Their term of office may be extended for additional five-year periods, or until retirement age if that age is reached during the new term of office after a prior positive evaluation of their performance by the Management Board, and after consulting the President of the Boards of Appeal. 6. The members of the Boards of Appeal shall 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 Management Board on the recommendation of the President of the Boards of Appeal, and after consulting the chairperson of the Board to which the member concerned belongs, takes a decision to this effect. 7. The President of the Boards of Appeal and the chairpersons and members of the Boards of Appeal shall be independent. In their decisions, they shall not be bound by any instructions. 8. Decisions taken by the Grand Board on appeals or opinions on questions of law referred to it by the Executive Director pursuant to Article 165 shall be binding on the decision-making instances of the Office listed in Article 159. 9. The President of the Boards of Appeal and the chairpersons and members of the Boards of Appeal shall not be examiners or members of the Opposition Divisions, the Department in charge of the Register or Cancellation Divisions.
Article 167 Presidium of the Boards of Appeal and Grand Board
1. The Presidium shall comprise the President of the Boards of Appeal, who shall chair it, the chairmen of the Boards and Board members elected for each calendar year by and from among all the members of the Boards other than the President of the Boards of Appeal and the chairmen of the Boards. The number of Board members so elected shall constitute a quarter of the number of Board members, other than the President of the Boards of Appeal and the chairmen of the Boards, and that number shall be rounded up if necessary. 2. The Grand Board referred to in Article 165(2) shall comprise nine members, including the President of the Boards of Appeal, the chairmen of the Boards, the rapporteur designated prior to referral to the Grand Board, if applicable, and members drawn in rotation from a list comprising the names of all members of the Boards of Appeal other than the President of the Boards of Appeal and the chairmen of the Boards.
Article 168 Delegation of powers
The Commission is empowered to adopt delegated acts in accordance with Article 208 specifying the details concerning the organisation of the Boards of Appeal, including the setting up and the role of the Presidium, the composition of the Grand Board and the rules on referrals to it, and the conditions under which decisions are to be taken by a single member in accordance with Article 165(2) and (5).
Article 169 Exclusion and objection
1. Examiners and members of the Divisions set up within the Office or of the Boards of Appeal may not take part in any proceedings if they have any personal interest therein, or if they have previously been involved as representatives of one of the parties. Two of the three members of an Opposition Division shall not have taken part in examining the application. Members of the Cancellation Divisions may not take part in any proceedings if they have participated in the final decision on the case in the proceedings for registration or opposition proceedings. Members of the Boards of Appeal may not take part in appeal proceedings if they participated in the decision under appeal. 2. If, for one of the reasons mentioned in paragraph 1 or for any other reason, a member of a Division or of a Board of Appeal considers that he should not take part in any proceedings, he shall inform the Division or Board accordingly. 3. Examiners and members of the Divisions or of a Board of Appeal may be objected to by any party for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. No objection may be based upon the nationality of examiners or members. 4. The Divisions and the Boards of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3 without the participation of the member concerned. For the purposes of taking this decision the member who withdraws or has been objected to shall be replaced in the Division or Board of Appeal by his alternate.
Article 170 Mediation centre
1. For the purposes of Article 151(3), the Office may establish a Mediation Centre (‘the Centre’). 2. Any natural or legal person may use the Centre's services on a voluntary basis with the aim of reaching a friendly settlement of disputes, based on this Regulation or Regulation (EC) No 6/2002, by mutual agreement. 3. The parties shall have recourse to mediation by means of a joint request. The request shall not be deemed to have been filed until the corresponding charge has been paid. The Executive Director shall fix the amount to be charged in accordance with Article 178(1). 4. In the case of disputes subject to the proceedings pending before the Opposition Divisions, Cancellation Divisions or before the Boards of Appeal of the Office a joint request for mediation may be presented at any time after the lodging of a notice of opposition, an application for revocation or an application for a declaration of invalidity or a notice of appeal against decisions of the Opposition or Cancellation Divisions. 5. The proceedings in question shall be suspended and the time periods, other than the time periods for the payment of the applicable fee, shall be interrupted as from the date of the filing of a joint request for mediation. The time periods shall continue as from the day on which the proceedings are resumed. 6. The parties shall be invited to jointly appoint, from the list referred to in paragraph 12, a mediator who has declared that he has a command of the language of the mediation in question. Where the parties do not appoint a mediator within 20 days of the invitation to do so, the mediation shall be deemed to have failed. 7. The parties shall agree together with the mediator on the detailed arrangements for the mediation in a mediation agreement. 8. The mediator shall conclude the mediation proceedings as soon as the parties reach a settlement agreement, or one of the parties declares that it wishes to end the mediation or the mediator establishes that the parties have failed to reach such an agreement. 9. The mediator shall inform the parties as well as the relevant instance of the Office as soon as the mediation proceedings have been concluded. 10. The discussions and negotiations conducted within the framework of mediation shall be confidential for all persons involved in the mediation, in particular for the mediator, the parties and their representatives. All documents and information submitted during the mediation shall be kept separately from, and shall not be part of, the file of any other proceedings before the Office. 11. The mediation shall be conducted in one of the official languages of the Union to be agreed upon by the parties. Where the mediation relates to disputes pending before the Office, the mediation shall be conducted in the language of the Office proceedings, unless otherwise agreed by the parties. 12. The Office shall establish a list of mediators who shall support parties in resolving disputes. The mediators shall be independent and possess relevant skills and experience. The list may include mediators who are employed by the Office, and mediators who are not so employed. 13. Mediators shall be impartial in the exercise of their duties and shall declare any real or perceived conflict of interest upon their designation. Members of the decision-making instances of the Office listed in Article 159 shall not take part in mediation concerning a case in which they have: (a) had any prior involvement in the proceedings referred to mediation; (b) any personal interest in those proceedings; or (c) been previously involved as a representative of one of the parties. 14. Mediators shall not take part as members of the decision-making instances of the Office listed in Article 159 in proceedings resumed as a consequence of a mediation failure. 15. The Office may cooperate with other recognised national or international bodies dealing with mediation.
Article 171 Budget Committee
1. The Budget Committee shall have the functions assigned to it in this Section. 2. Articles 154 and 155, Article 156(1) to (4), and (5), in so far as it relates to the election of the chairperson and deputy chairperson, and Article 156(6) and (7) shall apply to the Budget Committee, mutatis mutandis . 3. The Budget Committee shall take its decisions by an absolute majority of its members. However, a majority of two-thirds of its members shall be required for the decisions which the Budget Committee is empowered to take under Article 173(3) and Article 177. In both cases each member shall have one vote.
Article 172 Budget
1. Estimates of all the Office's revenue and expenditure shall be prepared for each financial year and shall be shown in the Office's budget. Each financial year shall correspond to the calendar year. 2. The revenue and expenditure shown in the budget shall be in balance. 3. Revenue shall comprise, without prejudice to other types of income, total fees payable under Annex I to this Regulation, total fees as provided for in Regulation (EC) No 6/2002, total fees payable, under the Madrid Protocol, for an international registration designating the Union, and other payments made to Contracting Parties to the Madrid Protocol, total fees payable, under the Geneva Act referred to in Article 106c of Regulation (EC) No 6/2002, for an international registration designating the Union and other payments made to Contracting Parties to the Geneva Act, and, to the extent necessary, a subsidy entered against a specific heading of the Commission section of the general budget of the Union. 4. Every year the Office shall offset the costs incurred by the central industrial property offices of the Member States, by the Benelux Office for Intellectual Property and by any other relevant authority to be nominated by a Member State, as the result of the specific tasks which they carry out as functional parts of the EU trade mark system in the context of the following services and procedures: (a) opposition and invalidity proceedings before the central industrial property offices of the Member States and the Benelux Office for Intellectual Property involving EU trade marks; (b) provision of information on the functioning of the EU trade mark system through helpdesks and information centres; (c) enforcement of EU trade marks, including action taken pursuant to Article 9(4). 5. The overall offsetting of the costs identified in paragraph 4 shall correspond to 5 % of the yearly revenue of the Office. Without prejudice to the third subparagraph of this paragraph, on a proposal by the Office and after having consulted the Budget Committee, the Management Board shall determine the distribution key on the basis of the following fair, equitable and relevant indicators: (a) the annual number of EU trade mark applications originating from applicants in each Member State; (b) the annual number of national trade mark applications in each Member State; (c) the annual number of oppositions and applications for a declaration of invalidity submitted by proprietors of EU trade marks in each Member State; (d) the annual number of cases brought before the EU trade mark courts designated by each Member State in accordance with Article 123. For the purpose of substantiating the costs referred to in paragraph 4, Member States shall submit to the Office by 31 March of each year, statistical data demonstrating the figures referred to in points (a) to (d) of the first subparagraph of this paragraph for the preceding year, which shall be included in the proposal to be made to the Management Board. On grounds of equity, the costs incurred by the bodies referred to in paragraph 4 in each Member State shall be deemed to correspond to at least 2 % of the total offsetting provided for under this paragraph. 6. The obligation by the Office to offset the costs referred to in paragraph 4 and incurred in a given year shall only apply to the extent that no budgetary deficit occurs in that year. 7. In the event of a budgetary surplus, and without prejudice to paragraph 10, on a proposal by the Office and after having consulted the Budget Committee, the Management Board may increase the percentage laid down in paragraph 5 to a maximum of 10 % of the yearly revenue of the Office. 8. Without prejudice to paragraphs 4 to 7 and paragraph 10 of this Article and to Articles 151 and 152, where a substantive surplus is generated over five consecutive years, the Budget Committee, upon a proposal from the Office and in accordance with the annual work programme and multiannual strategic programme referred to in Article 153(1)(a) and (b), shall decide by a two-thirds majority on the transfer to the budget of the Union of a surplus generated from 23 March 2016. 9. The Office shall prepare on a biannual basis a report for the European Parliament, the Council and the Commission on its financial situation, including on the financial operations performed under Article 152(5) and (6), and paragraphs 5 and 7 of this Article. On the basis of that report, the Commission shall review the financial situation of the Office. 10. The Office shall provide for a reserve fund covering one year of its operational expenditure to ensure the continuity of its operations and the execution of its tasks.
Article 173 Preparation of the budget
1. The Executive Director shall draw up each year an estimate of the Office's revenue and expenditure for the following year and shall send it to the Budget Committee not later than 31 March in each year, together with a list of posts. 2. Should the budget estimates provide for a Union subsidy, the Budget Committee shall immediately forward the estimate to the Commission, which shall forward it to the budget authority of the Union. The Commission may attach an opinion on the estimate along with an alternative estimate. 3. The Budget Committee shall adopt the budget, which shall include the Office's list of posts. Should the budget estimates contain a subsidy from the general budget of the Union, the Office's budget shall, if necessary, be adjusted.
Article 174 Audit and control
1. An internal audit function shall be set up within the Office, to be performed in compliance with the relevant international standards. The internal auditor, appointed by the Executive Director, shall be responsible to him for verifying the proper operation of budget implementation systems and procedures of the Office. 2. The internal auditor shall advise the Executive Director on dealing with risks, by issuing independent opinions on the quality of management and control systems and by issuing recommendations for improving the conditions of implementation of operations and promoting sound financial management. 3. The responsibility for putting in place internal control systems and procedures suitable for carrying out his tasks shall lie with the authorising officer.
Article 175 Combating fraud
1. In order to facilitate combating fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council ( 25 ) , the Office shall accede to the Inter-institutional Agreement of 25 May 1999 concerning internal investigations by OLAF, and adopt the appropriate provisions applicable to all the employees of the Office using the template set out in the Annex to that Agreement. 2. The Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the Office. 3. OLAF may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 ( 26 ) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant or a contract funded by the Office. 4. Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries and international organisations, contracts, grant agreements and grant decisions of the Office shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, in accordance with their respective competences. 5. The Budget Committee shall adopt an anti-fraud strategy which is proportionate to the fraud risks having regard to the cost-benefit of the measures to be implemented.
Article 176 Auditing of accounts
1. Not later than 31 March in each year the Executive Director shall transmit to the Commission, the European Parliament, the Budget Committee and the Court of Auditors accounts of the Office's total revenue and expenditure for the preceding financial year. The Court of Auditors shall examine them in accordance with Article 287 TFEU. 2. The Budget Committee shall give a discharge to the Executive Director in respect of the implementation of the budget.
Article 177 Financial provisions
The Budget Committee shall, after consulting the Court of Auditors and the Commission, adopt internal financial provisions specifying, in particular, the procedure for establishing and implementing the Office's budget. As far as is compatible with the particular nature of the Office, the financial provisions shall be based on the financial regulations adopted for other bodies set up by the Union.
Article 178 Fees and charges and due date
1. The Executive Director shall lay down the amount to be charged for any services rendered by the Office other than those set out in Annex I, as well as the amount to be charged for the European Union Trade Marks Bulletin, the Official Journal of the Office and any other publications issued by the Office. The amounts of charges shall be set in euros and shall be published in the Official Journal of the Office. The amount of each charge shall not exceed what is necessary to cover the costs of the specific service rendered by the Office. 2. Fees and charges in respect of which the due date is not specified in this Regulation shall be due on the date of receipt of the request for the service for which the fee or the charge is incurred. With the consent of the Budget Committee, the Executive Director may determine which of the services mentioned in the first subparagraph are not to be dependent upon the advance payment of the corresponding fees or charges.
Article 179 Payment of fees and charges
1. Fees and charges due to the Office shall be paid by payment or transfer to a bank account held by the Office. With the consent of the Budget Committee, the Executive Director may establish which specific methods of payment other than those set out in the first subparagraph, in particular by means of deposits in current accounts held with the Office, may be used. Determinations made pursuant to the second subparagraph shall be published in the Official Journal of the Office. All payments, including by any other method of payment established pursuant to the second subparagraph, shall be made in euros. 2. Every payment shall indicate the name of the person making the payment and shall contain the necessary information to enable the Office to establish immediately the purpose of the payment. In particular, the following information shall be provided: (a) when the application fee is paid, the purpose of the payment, namely ‘application fee’; (b) when the opposition fee is paid, the file number of the application and the name of the applicant for the EU trade mark against which opposition is entered, and the purpose of the payment, namely ‘opposition fee’; (c) when the revocation fee and the invalidity fee are paid, the registration number and the name of the proprietor of the EU trade mark against which the application is directed, and the purpose of the payment, namely ‘revocation fee’ or ‘invalidity fee’. 3. If the purpose of the payment referred to in paragraph 2 cannot immediately be established, the Office shall require the person making the payment to notify it in writing of this purpose within such period as it may specify. If the person does not comply with this request in due time, the payment shall be considered not to have been made. The amount which has been paid shall be refunded.
Article 180 Deemed date of payment
1. In the cases referred to in the first subparagraph of Article 179(1), the date on which the payment shall be considered to have been made to the Office shall be the date on which the amount of the payment or of the transfer is actually entered in a bank account held by the Office. 2. Where the methods of payment referred to in the second subparagraph of Article 179(1) may be used, the Executive Director shall establish the date on which such payments are to be considered to have been made. 3. Where, under paragraphs 1 and 2, payment of a fee is not considered to have been made until after the expiry of the period in which it was due, it shall be considered that this period has been observed if evidence is provided to the Office that the persons who made the payment in a Member State, within the period within which the payment should have been made, duly gave an order to a banking establishment to transfer the amount of the payment, and paid a surcharge of 10 % of the relevant fee or fees, but not exceeding EUR 200. No surcharge shall be payable if the relevant order to the banking establishment has been given not later than 10 days before the expiry of the period for payment. 4. The Office may request the person who made the payment to produce evidence as to the date on which the order to the banking establishment as referred to in paragraph 3 was given and, where required, to pay the relevant surcharge within a period to be specified by it. If the person fails to comply with that request or if the evidence is insufficient, or if the required surcharge is not paid in due time, the period for payment shall be considered not to have been observed.
Article 181 Insufficient payments and refund of insignificant amounts
1. A time limit for payment shall, in principle, be considered to have been observed only if the full amount of the fee has been paid in due time. If the fee is not paid in full, the amount which has been paid shall be refunded after the period for payment has expired. 2. The Office may, however, in so far as is possible within the time remaining before the end of the period, give the person making the payment the opportunity to pay the amount lacking or, where this is considered justified, overlook any small amounts lacking, without prejudice to the rights of the person making the payment. 3. With the consent of the Budget Committee, the Executive Director may waive action for the enforced recovery of any sum due where the sum to be recovered is minimal or where such recovery is too uncertain. 4. Where an excessive sum is paid to cover a fee or a charge, the excess shall not be refunded if the amount is insignificant and the party concerned has not expressly requested a refund. With the consent of the Budget Committee the Executive Director may determine the amount below which an excessive sum paid to cover a fee or a charge shall not be refunded. Determinations pursuant to the second subparagraph shall be published in the Official Journal of the Office.
Article 182 Application of provisions
Unless otherwise specified in this chapter, this Regulation and the acts adopted pursuant to this Regulation shall apply to applications for international registrations under the Madrid Protocol (‘international applications’), based on an application for an EU trade mark or on an EU trade mark and to registrations of marks in the international register maintained by the International Bureau of the World Intellectual Property Organisation (‘international registrations’ and ‘the International Bureau’, respectively) designating the Union.
Article 183 Filing of an international application
1. International applications pursuant to Article 3 of the Madrid Protocol based on an application for an EU trade mark or on an EU trade mark shall be filed at the Office. 2. Where an international application is filed before the mark on which the international registration is to be based has been registered as an EU trade mark, the applicant for the international registration shall indicate whether the international registration is to be based on an EU trade mark application or registration. Where the international registration is to be based on an EU trade mark once it is registered, the international application shall be deemed to have been received at the Office on the date of registration of the EU trade mark.
Article 184 Form and contents of the international application
1. The international application shall be filed in one of the official languages of the Union, using a form provided by the Office. The Office shall inform the applicant filing the international application of the date on which the documents making up the international application are received by the Office. Unless otherwise specified by the applicant on form when he files the international application, the Office shall correspond with the applicant in the language of filing in a standard form. 2. If the international application is filed in a language which is not one of the languages allowed under the Madrid Protocol, the applicant shall indicate a second language from among those languages. This shall be the language in which the Office submits the international application to the International Bureau. 3. Where the international application is filed in a language other than one of the languages allowed under the Madrid Protocol for the filing of international applications, the applicant may provide a translation of the list of goods or services and of any other textual elements forming part of the international application in the language in which the international application is to be submitted to the International Bureau pursuant to paragraph 2. If the application is not accompanied by such translation, the applicant shall authorise the Office to include that translation in the international application. Where the translation has not yet been established in the course of the registration procedure for the EU trade mark application on which the international application is based, the Office shall, without delay, arrange for the translation. 4. The filing of an international application shall be subject to the payment of a fee to the Office. Where the international registration is to be based on an EU trade mark once it is registered, the fee shall be due on the date of registration of the EU trade mark. The application shall be deemed not to have been filed until the required fee has been paid. Where the fee has not been paid, the Office shall inform the applicant accordingly. In the event of electronic filing, the Office may authorise the International Bureau to collect the fee on its behalf. 5. Where the examination of the international application reveals any of the following deficiencies, the Office shall invite the applicant to remedy those deficiencies within such period as it may specify: (a) the international application has not been filed using the form referred to in paragraph 1, and does not contain all the indications and information required by that form; (b) the list of goods and services contained in the international application is not covered by the list of goods and services appearing in the basic EU trade mark application or basic EU trade mark; (c) the mark which is subject to the international application is not identical with the mark as it appears in the basic EU trade mark application or basic EU trade mark; (d) an indication in the international application as to the trade mark, other than a disclaimer or a colour claim, does not also appear in the basic EU trade mark application or basic EU trade mark; (e) where colour is claimed in the international application as a distinctive feature of the mark, the basic EU trade mark application or basic EU trade mark is not in the same colour or colours; or (f) according to the indications made in the international form, the applicant is not eligible to file an international application through the Office in accordance with Article 2(1)(ii) of the Madrid Protocol. 6. Where the applicant has failed to authorise the Office to include a translation as provided for in paragraph 3, or where it is otherwise unclear on which list of goods and services the international application is to be based, the Office shall invite the applicant to make the required indications within such period as it may specify. 7. If the deficiencies referred to in paragraph 5 are not remedied or the required indications referred to in paragraph 6 are not given within the period fixed by the Office, the Office shall refuse to forward the international application to the International Bureau. 8. The Office shall forward the international application to the International Bureau along with the certification provided for under Article 3(1) of the Madrid Protocol as soon as the international application meets the requirements laid down in this Article, the implementing act adopted pursuant to paragraph 9 of this Article, and in Article 183 of this Regulation. 9. The Commission shall adopt implementing acts specifying the exact form, including the elements thereof, to be used for the filing of an international application pursuant to paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 185 Recordal in the files and in the Register
1. The date and number of an international registration based on an EU trade mark application shall be recorded in the files of that application. When the application results in an EU trade mark, the date and number of the international registration shall be entered in the Register. 2. The date and number of an international registration based on an EU trade mark shall be entered in the Register.
Article 186 Notification of the invalidity of the basic application or registration
1. Within a period of five years of the date of the international registration, the Office shall notify the International Bureau of any facts and decisions affecting the validity of the EU trade mark application or the EU trade mark registration on which the international registration was based. 2. The Commission shall adopt implementing acts specifying the individual facts and decisions subject to the notification obligation in accordance with Article 6(3) of the Madrid Protocol as well as the relevant point in time of such notifications. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2) of this Regulation.
Article 187 Request for territorial extension subsequent to international registration
1. A request for territorial extension made subsequent to an international registration pursuant to Article 3 ter (2) of the Madrid Protocol may be filed through the intermediary of the Office. The request shall be filed in the language in which the international application was filed pursuant to Article 184 of this Regulation. It shall include indications to substantiate the entitlement to make a designation in accordance with Article 2(1)(ii) and Article 3 ter (2) of the Madrid Protocol. The Office shall inform the applicant requesting the territorial extension of the date on which the request for territorial extension was received. 2. The Commission shall adopt implementing acts specifying the detailed requirements regarding the request for territorial extension pursuant to paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2). 3. Where the request for territorial extension made subsequent to the international registration does not comply with the requirements set out in paragraph 1 and in the implementing act adopted pursuant to paragraph 2, the Office shall invite the applicant to remedy the deficiencies found within such time limit as it may specify. If the deficiencies are not remedied within the time limit fixed by the Office, the Office shall refuse to forward the request to the International Bureau. The Office shall not refuse to forward the request to the International Bureau before the applicant has had the opportunity to correct any deficiency detected in the request. 4. The Office shall forward the request for territorial extension made subsequent to the international registration to the International Bureau as soon as the requirements referred to in paragraph 3 are complied with.
Article 188 International fees
Any fees payable to the International Bureau under the Madrid Protocol shall be paid direct to the International Bureau.
Article 189 Effects of international registrations designating the Union
1. An international registration designating the Union shall, from the date of its registration pursuant to Article 3(4) of the Madrid Protocol or from the date of the subsequent designation of the Union pursuant to Article 3 ter (2) of the Madrid Protocol, have the same effect as an application for an EU trade mark. 2. If no refusal has been notified in accordance with Article 5(1) and (2) of the Madrid Protocol or if any such refusal has been withdrawn, the international registration of a mark designating the Union shall, from the date referred to in paragraph 1, have the same effect as the registration of a mark as an EU trade mark. 3. For the purposes of applying Article 11 of this Regulation, publication of the particulars of the international registration designating the Union pursuant to Article 190(1) shall take the place of publication of an EU trade mark application, and publication pursuant to Article 190(2) shall take the place of publication of the registration of an EU trade mark.
Article 190 Publication
1. The Office shall publish the date of registration of a mark designating the Union pursuant to Article 3(4) of the Madrid Protocol or the date of the subsequent designation of the Union pursuant to Article 3 ter (2) of the Madrid Protocol, the language of filing of the international application and the second language indicated by the applicant, the number of the international registration and the date of publication of such registration in the Gazette published by the International Bureau, a reproduction of the mark and the numbers of the classes of the goods or services in respect of which protection is claimed. 2. If no refusal of protection of an international registration designating the Union has been notified in accordance with Article 5(1) and (2) of the Madrid Protocol or if any such refusal has been withdrawn, the Office shall publish this fact, together with the number of the international registration and, where applicable, the date of publication of such registration in the Gazette published by the International Bureau.
Article 191 Seniority claimed in an international application
1. The applicant for an international registration designating the Union may claim, in the international application, the seniority of an earlier trade mark registered in a Member State, including a trade mark registered in the Benelux countries, or registered under international arrangements having effect in a Member State, as provided for in Article 39. 2. The documentation, as specified in the implementing act adopted pursuant to Article 39(6), in support of the seniority claim shall be submitted within three months of the date on which the International Bureau notifies the international registration to the Office. In this regard, Article 39(7) shall apply. 3. Where the holder of the international registration is obliged to be represented before the Office pursuant to Article 119(2), the communication as referred to in paragraph 2 of this Article shall contain the appointment of a representative within the meaning of Article 120(1). 4. Where the Office finds that the seniority claim under paragraph 1 of this Article does not comply with Article 39, or does not comply with the other requirements laid down in this Article, it shall invite the applicant to remedy the deficiencies. If the requirements referred to in the first sentence are not satisfied within the time limit specified by the Office, the right of seniority in respect of that international registration shall be lost. If the deficiencies concern only some of the goods and services, the right of seniority shall be lost only in so far as those goods and services are concerned. 5. The Office shall inform the International Bureau of any declaration of a loss of the right of seniority pursuant to paragraph 4. It shall also inform the International Bureau of any withdrawal or restriction of the seniority claim. 6. Article 39(5) shall apply, unless the right of seniority is declared lost pursuant to paragraph 4 of this Article.
Article 192 Seniority claimed before the Office
1. The holder of an international registration designating the Union may, as from the date of publication of the effects of such registration pursuant to Article 190(2), claim at the Office the seniority of an earlier trade mark registered in a Member State, including a trade mark registered in the Benelux countries, or registered under international arrangements having effect in a Member State, as provided for in Article 40. 2. When the seniority is claimed before the date referred to in paragraph 1, the seniority claim shall be deemed to have been received by the Office on that date. 3. A seniority claim under paragraph 1 of this Article shall fulfil the requirements referred to in Article 40 and shall contain information to enable its examination against those requirements. 4. If the requirements governing the claiming of seniority referred to in paragraph 3 and specified in the implementing act adopted pursuant to paragraph 6 are not fulfilled, the Office shall invite the holder of the international registration to remedy the deficiencies. If the deficiencies are not remedied within a period to be specified by the Office, the Office shall reject the claim. 5. Where the Office has accepted the seniority claim, or where a seniority claim has been withdrawn or cancelled by the Office, the Office shall inform the International Bureau accordingly. 6. The Commission shall adopt implementing acts specifying the details to be contained in a seniority claim under paragraph 1 of this Article and the details of the information to be notified pursuant to paragraph 5 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 193 Designation of goods and services and examination as to absolute grounds for refusal
1. International registrations designating the Union shall be subject to examination as to their conformity with Article 33(2), (3) and (4) and to absolute grounds for refusal in the same way as applications for EU trade marks. 2. Where an international registration designating the Union is found to be ineligible for protection pursuant to Article 33(4) or Article 42(1) of this Regulation for all or any part of the goods and services for which it has been registered by the International Bureau, the Office shall issue an ex officio provisional notification of refusal to the International Bureau, in accordance with Article 5(1) and (2) of the Madrid Protocol. 3. Where the holder of an international registration is obliged to be represented before the Office pursuant to Article 119(2), the notification referred to in paragraph 2 of this Article shall contain an invitation to appoint a representative within the meaning of Article 120(1). 4. The notification of provisional refusal shall state the reasons on which it is based, and shall specify a time period by which the holder of the international registration may submit his observations and, if appropriate, shall appoint a representative. The time period shall start on the day on which the Office issues the provisional refusal. 5. Where the Office finds that the international application designating the Union does not contain the indication of a second language pursuant to Article 206 of this Regulation, the Office shall issue an ex officio provisional notification of refusal to the International Bureau pursuant to Article 5(1) and (2) of the Madrid Protocol. 6. Where the holder of an international registration fails to overcome the ground for refusing protection within the time limit or, if appropriate, to appoint a representative or to indicate a second language, the Office shall refuse the protection in whole or for part of the goods and services for which the international registration is registered. The refusal of protection shall take the place of a refusal of an EU trade mark application. The decision shall be subject to appeal in accordance with Articles 66 to 72. 7. Where, as of the start of the opposition period referred to in Article 196(2), the Office has not issued an ex officio provisional notification of refusal pursuant to paragraph 2 of this Article, it shall send a statement to the International Bureau, indicating that the examination of absolute grounds of refusal pursuant to Article 42 has been completed but that the international registration is still subject to oppositions or observations of third parties. This interim statement shall be without prejudice to the right of the Office to re-open the examination of absolute grounds on its own initiative any time before the final statement of grant of protection has been issued. 8. The Commission shall adopt implementing acts specifying the details to be contained in the notification of ex officio provisional refusal of protection to be sent to the International Bureau and in the final communications to be sent to the International Bureau on the final grant or refusal of protection. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 194 Collective and certification marks
1. Where an international registration is based on a basic application or basic registration relating to a collective mark, certification mark or guarantee mark, the international registration designating the Union shall be dealt with as an EU collective mark or as an EU certification mark, whichever is applicable. 2. The holder of the international registration shall submit the regulations governing the use of the mark, as provided for in Articles 75 and 84, directly to the Office within two months of the date on which the International Bureau notifies the international registration to the Office. 3. The Commission is empowered to adopt delegated acts in accordance with Article 208 specifying the details of the procedure concerning international registrations based on a basic application or basic registration relating to a collective mark, certification mark or guarantee mark.
Article 195 Search
1. Once the Office has received a notification of an international registration designating the Union, it shall draw up a Union search report as provided for in Article 43(1) provided that a request for a search report, pursuant to Article 43(1), is made to the Office within one month of the date of notification. 2. As soon as the Office has received a notification of an international registration designating the Union, the Office shall 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 as provided for in Article 43(2) provided that a request for a search report, pursuant to Article 43(2), is made to the Office within one month of the date of notification and the search fee is paid within the same period. 3. Article 43(3) to (6) shall apply mutatis mutandis . 4. The Office shall inform the proprietors of any earlier EU trade marks or EU trade mark applications cited in the Union search report of the publication of the international registration designating the Union as provided for in Article 190(1). This shall apply whether or not the holder of the international registration has requested to receive the EU search report, unless the proprietor of an earlier registration or application requests not to receive the notification.
Article 196 Opposition
1. International registration designating the Union shall be subject to opposition in the same way as published EU trade mark applications. 2. Notice of opposition shall be filed within a period of three months which shall begin one month following the date of the publication pursuant to Article 190(1). The opposition shall not be considered as duly entered until the opposition fee has been paid. 3. Refusal of protection shall take the place of refusal of an EU trade mark application. 4. The Commission is empowered to adopt delegated acts in accordance with Article 208 specifying the procedure for the filing and examination of an opposition, including the necessary communications to be made to the International Bureau.
Article 197 Replacement of an EU trade mark by an international registration
The Office shall, upon request, enter a notice in the Register that an EU trade mark is deemed to have been replaced by an international registration in accordance with Article 4 bis of the Madrid Protocol.
Article 198 Invalidation of the effects of an international registration
1. The effects of an international registration designating the Union may be declared invalid. 2. The application for invalidation of the effects of an international registration designating the Union shall take the place of an application for a declaration of revocation as provided for in Article 58 or for a declaration of invalidity as provided for in Article 59 or Article 60. 3. Where pursuant to Article 64 or Article 128 of this Regulation and this Article, the effects of an international registration designating the Union have been declared invalid by means of a final decision, the Office shall notify the International Bureau in accordance with Article 5(6) of the Madrid Protocol. 4. The Commission shall adopt implementing acts specifying the details to be contained in the notification to be made to the International Bureau pursuant to paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 199 Legal effect of registration of transfers
The recordal of a change in the ownership of an international registration on the International Register shall have the same effect as the entry of a transfer in the Register pursuant to Article 20.
Article 200 Legal effect of registration of licences and other rights
The recordal of a licence or a restriction of the holder's right of disposal in respect of an international registration in the International Register shall have the same effect as the registration of a right in rem , a levy of execution, insolvency proceedings or a licence in the Register pursuant to Articles 22, 23, 24 and 25 respectively.
Article 201 Examination of requests for registration of transfers, licences or restrictions of a holder's right of disposal
The Office shall transmit requests to register a change in ownership, a licence or a restriction of the holder's right of disposal, the amendment or cancellation of a licence or the removal of a restriction of the holder's right of disposal which have been filed with it to the International Bureau, if accompanied by appropriate proof of the transfer, licence, or the restriction of the right of disposal, or by proof that the licence no longer exists or that it has been amended, or that the restriction of the right of disposal has been removed.
Article 202 Conversion of a designation of the Union through an international registration into a national trade mark application or into a designation of Member States
1. Where a designation of the Union through an international registration has been refused or ceases to have effect, the holder of the international registration may request the conversion of the designation of the Union: (a) into a national trade mark application pursuant to Articles 139, 140 and 141; (b) into a designation of a Member State party to the Madrid Protocol, provided that on the date when conversion was requested it was possible to have designated that Member State directly under the Madrid Protocol. Articles 139, 140 and 141 of this Regulation shall apply. 2. The national trade mark application or the designation of a Member State party to the Madrid Protocol resulting from the conversion of the designation of the Union through an international registration shall enjoy, in respect of the Member State concerned, the date of the international registration pursuant to Article 3(4) of the Madrid Protocol or the date of the extension to the Union pursuant to Article 3 ter (2) of the Madrid Protocol, if the latter was made subsequent to the international registration, or the date of priority of that registration and, where appropriate, the seniority of a trade mark of that State claimed under Article 191 of this Regulation. 3. The request for conversion shall be published. 4. The request for conversion of an international registration designating the Union into a national trade mark application shall include the information and indications referred to in Article 140(1). 5. Where conversion is requested pursuant to this Article and Article 139(5) of this Regulation following a failure to renew the international registration, the request referred to in paragraph 4 of this Article shall contain an indication to that effect and the date on which the protection expired. The period of three months provided for in Article 139(5) of this Regulation shall begin to run on the day following the last day on which the renewal may still be effected pursuant to Article 7(4) of the Madrid Protocol. 6. Article 140(3) and (5) shall apply to the request for conversion referred to in paragraph 4 of this Article mutatis mutandis . 7. The request for conversion of an international registration designating the Union into a designation of a Member State party to the Madrid Protocol shall include the indications and elements referred to in paragraphs 4 and 5. 8. Article 140(3) shall apply to the request for conversion referred to in paragraph 7 of this Article mutatis mutandis . The Office shall also reject the request for conversion where the conditions to designate the Member State which is a party to the Madrid Protocol or to the Madrid Agreement were fulfilled neither on the date of the designation of the Union nor on the date on which the application for conversion was received or, pursuant to the last sentence of Article 140(1), is deemed to have been received by the Office. 9. Where the request for conversion referred to in paragraph 7 complies with the requirements of this Regulation and rules adopted pursuant to it, the Office shall transmit the request without delay to the International Bureau. The Office shall inform the holder of the international registration of the date of transmission. 10. The Commission shall adopt implementing acts specifying: (a) the details to be contained in the requests for conversion referred to in paragraphs 4 and 7; (b) the details to be contained in the publication of the requests for conversion pursuant to paragraph 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 203 Use of a mark subject of an international registration
For the purposes of applying Article 18(1), Article 47(2), Article 58(1)(a) and Article 64(2), the date of publication pursuant to Article 190(2) shall take the place of the date of registration for the purpose of establishing the date as from which the mark which is the subject of an international registration designating the Union shall be put to genuine use in the Union.
Article 204 Transformation
1. Subject to paragraph 2, the provisions applicable to EU trade mark applications shall apply mutatis mutandis to applications for transformation of an international registration into an EU trade mark application pursuant to Article 9 quinquies of the Madrid Protocol. 2. When the application for transformation relates to an international registration designating the Union the particulars of which have been published pursuant to Article 190(2), Articles 42 to 47 shall not apply. 3. In order to be considered a transformation of an international registration which has been cancelled at the request of the office of origin by the International Bureau pursuant to Article 9 quinquies of the Madrid Protocol, an EU trade mark application shall contain an indication to that effect. That indication shall be made when filing the application. 4. Where, in the course of the examination in accordance with Article 41(1)(b), the Office finds that the application was not filed within three months of the date on which the international registration was cancelled by the International Bureau, or the goods and services for which the EU trade mark is to be registered are not contained in the list of goods and services for which the international registration was registered in respect of the Union, the Office shall invite the applicant to remedy the deficiencies. 5. If the deficiencies referred to in paragraph 4 are not remedied within the time period specified by the Office, the right to the date of the international registration or the territorial extension and, if any, of the priority of the international registration shall be lost. 6. The Commission shall adopt implementing acts specifying the details to be contained in an application for transformation pursuant to paragraph 3 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Article 205 Communication with the International Bureau
Communication with the International Bureau shall be in a manner and format agreed on between the International Bureau and the Office, and preferably be by electronic means. Any reference to forms shall be construed as including forms made available in electronic format.
Article 206 Use of languages
For the purpose of applying this Regulation, and rules adopted pursuant to it, to international registrations designating the Union, the language of filing of the international application shall be the language of the proceedings within the meaning of Article 146(4), and the second language indicated in the international application shall be the second language within the meaning of Article 146(3).
Article 207 Committee Procedure
1. The Commission shall be assisted by a Committee on Implementation Rules. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 208 Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 48, Article 49(3), Articles 65 and 73, Articles 96(4), 97(6), 98(5), 100(2), 101(5), 103(3), and 106(3), Articles 121 and 168, and Articles 194(3) and 196(4) shall be conferred on the Commission for an indeterminate period of time from 23 March 2016. 3. The delegation of power referred to in Article 48, Article 49(3), Articles 65 and 73, Articles 96(4), 97(6), 98(5), 100(2), 101(5), 103(3), and 106(3), Articles 121 and 168, and Articles 194(3) and 196(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall carry out consultations with experts, including experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 48, Article 49(3), Articles 65 and 73, Articles 96(4), 97(6), 98(5), 100(2), 101(5), 103(3), and 106(3), Articles 121 and 168, and Articles 194(3) and 196(4) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 209 Provisions relating to the enlargement of the Union
1. As of the date of accession of Bulgaria, the Czech Republic, Estonia, Croatia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania, Slovenia and Slovakia (‘new Member State(s)’), an EU trade mark registered or applied for pursuant to this Regulation before their respective date of accession shall be extended to the territory of those Member States in order to have equal effect throughout the Union. 2. The registration of an EU trade mark which was under application at the date of accession may not be refused on the basis of any of the absolute grounds for refusal listed in Article 7(1), if these grounds became applicable merely because of the accession of a new Member State. 3. Where an application for the registration of an EU trade mark has been filed during the six months prior to the date of accession, notice of opposition may be given pursuant to Article 46 where an earlier trade mark or another earlier right within the meaning of Article 8 was acquired in a new Member State prior to accession, provided that it was acquired in good faith and that the filing date or, where applicable, the priority date or the date of acquisition in the new Member State of the earlier trade mark or other earlier right precedes the filing date or, where applicable, the priority date of the EU trade mark applied for. 4. An EU trade mark as referred to in paragraph 1 may not be declared invalid: (a) pursuant to Article 59 if the grounds for invalidity became applicable merely because of the accession of a new Member State; (b) pursuant to Article 60(1) and (2) if the earlier national right was registered, applied for or acquired in a new Member State prior to the date of accession. 5. The use of an EU trade mark as referred to in paragraph 1 may be prohibited pursuant to Articles 137 and 138, if the earlier trade mark or other earlier right was registered, applied for or acquired in good faith in the new Member State prior to the date of accession of that State; or, where applicable, has a priority date prior to the date of accession of that State.
Article 210 Evaluation and review
1. By 24 March 2021, and every five years thereafter, the Commission shall evaluate the implementation of this Regulation. 2. The evaluation shall review the legal framework for cooperation between the Office and the central industrial property offices of the Member States and the Benelux Office for Intellectual Property, paying particular attention to the financing mechanism laid down in Article 152. The evaluation shall further assess the impact, effectiveness and efficiency of the Office and its working practices. The evaluation shall, in particular, address the possible need to modify the mandate of the Office, and the financial implications of any such modification. 3. The Commission shall forward the evaluation report together with its conclusions drawn on the basis of that report to the European Parliament, the Council and the Management Board. The findings of the evaluation shall be made public. 4. On the occasion of every second evaluation, there shall be an assessment of the results achieved by the Office having regard to its objectives, mandate and tasks.
Article 211 Repeal
Regulation (EC) No 207/2009 is repealed. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.
Article 212 Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union . It shall apply from 1 October 2017.