The architecture of the EU trademark system allows for the coexistence of national trademark regimes with that of the European Union trade mark (EUTM). Intellectual property, including trademark rights, is governed by international conventions that do not establish “international” intellectual property rights but merely set out procedures for recognizing rights already legislated in one state on the territory of another. EU member states have not pursued a complete unification of national legislation in this area but have instead established a protection mechanism at the EU level that right holders can use as an alternative to national systems.
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Following diplomatic conferences and intergovernmental meetings aimed at harmonizing national laws, the following EU trade mark legislation was adopted:
- First Directive 89/104/EEC on the harmonization of the laws of the Member States relating to trade marks (effective from March 15, 1994).
- Regulation (EC) No 40/94 of the European Council on the Community trade mark, adopted on December 20, 1993, and effective from March 15, 1994.
In this context, the Office for Harmonization in the Internal Market (OHIM) was established, with its headquarters in Alicante, Spain, officially inaugurated on April 1, 1996. Later, on March 23, 2016, OHIM was renamed EUIPO (European Union Intellectual Property Office), in accordance with Regulation (EU) 2015/2424.
The EU trade mark enjoys uniform protection throughout the territory of all EU member states, meaning that from the moment Romania joined the EU, the EUTM has also had effect in Romania.
The EU trade mark grants the holder rights valid across the entire EU territory, allowing the holder to market goods or services registered under that trade mark throughout the Union.
The EUTM system is not restrictive; an applicant or holder of an EUTM does not lose any of the national rights previously held, provided they comply with deadlines, formulations, and the fees stipulated in the EU trade mark regulation.
The right to an EU trade mark can only be obtained through registration, and its mere use does not create a protective right.
EU Trade Mark Registration Procedure
The registration of an EU trademark is based on a single procedure that simplifies the overall trade mark registration policy. There is a single legal system for the entire European Union, and registration formalities and costs are lower than if separate registrations were made in each member state.
The EUTM cannot be transferred partially, it cannot be the subject of a partial waiver or cancellation, and its use cannot be prohibited except for all the member states of the European Union.
One drawback of this system is that if a single country refuses registration on its territory for various reasons (e.g., the existence of an identical national trade mark), the EUTM cannot be registered for the entire Union. In this case, the holder may resort to national registrations, a more cumbersome and costly process.
Filing an EU trademark application
The application for registration can be submitted in various ways, influencing the overall costs. The easiest and most cost-effective option is to submit the application online through the official website euipo.europa.eu. The cost of submitting online is 850 EUR for one class of goods/services and increases by 50 EUR for each additional class. The application can also be filed by mail or in person at the EUIPO office in Alicante, but these methods incur higher costs.
One common mistake applicants make is filing an application without checking whether there are identical or similar trademarks already registered. Even with a careful check, national trade marks in certain member states may oppose the registration.
Examination and publication of the rrademark application
After filing and formal confirmation (correct completion of the application and payment of fees), EUIPO issues a search report listing earlier EU trade marks and applications that might conflict with the application. Subsequently, the application is forwarded to all EU member states to conduct checks in their own registers and signal any potentially conflicting marks at the national level.
If the trade mark meets all conditions, the application is published in the EUIPO Official Bulletin. Within three months of publication, any interested third party can file oppositions or observations regarding the registration.
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Conflicts between national and EU trademarks
In cases of conflict between national and EU trade marks, the principle of priority of registration applies. If a national trade mark was registered earlier, it can prohibit the use of the EU trademark on its territory, but the EUTM remains valid in the rest of the European Union. Conversely, if the EUTM has priority, the cancellation of the national trade mark can be requested.
Thus, although the national system coexists with the EU system, identical or similar trade marks, even if registered in good faith, cannot coexist if their use risks creating confusion for consumers.
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