Friday, 1 April 2011

15 years of Community Trade Marks

Was April Fool's Day an appropriate day on which to start the CTM system? I was never convinced that the Community trade mark system was an unqualified Good Thing, and not only because I was making a decent living out of UK trade mark work and getting friends abroad to deal with national applications in their countries for my clients and vice versa.

OHIM, unsurprisingly, has issued a press release (or actually what now seems to be called a media release) to mark the CTM's 15th birthday. Equally unsurprisingly, it claims that the project has been a success. More applications were filed on Day 1 than they had expected for the whole of year 1. Since then the pace hardly seems to have slackened. "Since then almost 320,000 companies or individuals in 190 countries have made 940,000 CTM applications, of which more than 713,000 have been registered, making the CTM a true European success story" to release tells us.

Leave aside the fact that calling a European Community or Union project "European" smacks of imperialism and must surely be highly offensive to Norwegians, Icelanders, Swiss, Serbs, Croats, Ukranians, Russians, Byelorussians, Moldovans and all the other non-EU Europeans. On what level is it a success?

It has generated immense revenues for OHIM, of course, and if you count a public institution making lots of money a success then that's a good start. It has also given important protection to the identifiers used by a lot of businesses.

But the money in OHIM's coffers has come from somewhere, and much of it has come from businesses which have little alternative but to register a trade mark before someone else registers one that conflicts with theirs. Because in the Community system what matters isn't how businesses are recognised in the market place but who first applied to get a CTM registered, there are a lot of trade marks registered that in a better system (like the one we used to have in the UK, perhaps) wouldn't have to be registered in the first place. To businesses that have to file applications for purely defensive reasons, the CTM system is little more than a tax.

It has also enabled some trade mark owners to build sprawling empires, by registering trade marks for all manner of goods and services that they don't have any real interest in, by registering elements of their trade marks instead of only the composite sign which is what identifies them and which is what trade mark law should protect, and by grabbing exclusive rights for the whole European Union area when in fact they are only trading in a small part of it. Foreclosure and depletion are becoming (indeed, probably have become) big problems, yet the Benelux and Hungarian trade mark offices are considered "off-message" when they demand evidence of use at something approaching Community level.

And that's before we even get onto the costs imposed on businesses of opposing applications that conflict with their registrations - because notwithstanding the hefty fees charged by OHIM, they don't presume to keep the register clear of conflicts. no, that's another cost for the trade mark owner.

And ... to add insult to injury the register contains completely ridiculous trade marks of which my favourites
are 005338959 and 005238399 - for which nonsense (double nonsense - why two apparently identical trade marks, unless there's some small difference in the goods and services that I haven't spotted?) we taxpayers have swelled OHIM's coffers. What sort of trade do these represent? Why the vast range of goods and services (watercolours, for goodness sake! And artificial flowers!)? And why a CTM? Is an invasion planned? Wouldn't trade mark protection in Afghanistan, Iraq and perhaps Libya be more useful?

I don't blame the trade mark owners: if there's a possibility to register something they need to take it and if they let someone else get it their shareholders or other owners will want to know why. If the system allows them to register daft trade marks, then register them they must, until they run out of money. If the system doesn't give emanations of the state the sort of protection they get in Canada (where, I know, "official marks" are overstrong, so any other country's law that tries to go the same way needs to be carefully limited) we will have government departments, police forces, universities and others registering trade marks - because, like it or not, all these bodies are now engaged in some form of trade. No, the fault for this bloated, over-inflated trade mark system lies with the institutions and the politicians who created the laws.

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