A Global and Local Outlook
Elgar Intellectual Property Law and Practice series
Edited by Irene Calboli and Jacques de Werra
Chapter 14: TRADEMARK TRANSACTIONS IN EU LAW: REFINING THE APPROACH TO SELECTIVE DISTRIBUTION NETWORKS AND NATIONAL UNFAIR COMPETITION LAW
Harmonized European Union (EU) trademark law contains rules on trademarks as objects of property, including transfers and licenses, in Articles 16 to 24 of the Community Trade Mark Regulation (CTMR) and a provision on licensing in Article 8 of the Trade Mark Directive (TMD). The rudimentary nature of this set of EU rules clearly comes to the fore in Article 16(1) of the CTMR: unless the CTMR provides harmonized norms, questions concerning Community Trade Marks (CTMs) as objects of property must be answered – for the whole EU territory – on the basis of the national law of a single EU Member State. The applicable national law is to be determined in accordance with the rules on points of attachment given in Article 16 of the CTMR. The seat or domicile of the trademark proprietor serves as the primary point of attachment. An establishment can be used as an alternative. As the EU trademark office – the Office for Harmonization in the Internal Market (OHIM) – has its seat in Alicante, Spain, the national law of Spain applies in default of a seat, domicile or establishment. The regulation of trademark transactions in the EU thus relies on a harmonious interplay of harmonized EU law and individual national legislation. This configuration of the system places a particular responsibility on the Court of Justice of the European Union (CJEU). When interpreting harmonized EU rules, the CJEU ought to consider the impact of its decision on the proper functioning of national law.
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