Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 15: Fundamental rights in the practice of the European Trade Mark and Designs Office (OHIM)
At first sight the topic looks surprising – of course fundamental rights are well respected in the practice of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘OHIM’ or ‘the Office’). Looking into the provisions with a closer eye, however, doubts start to rise over the details. This chapter aims to discuss a number of current problems in trade mark law in the light of fundamental rights. The topic will be looked upon in eight sections: (1) OHIM is bound by various, partially overlapping sets of fundamental rights; (2) procedural fundamental rights are most important for the practice of the Office and the Boards of Appeal. To a very large extent they are all codified in the Regulations; (3) (almost) everybody has the right to an effective judicial control before the Boards of Appeal, the General Court and the Court of Justice; (4) the fundamental right of equal treatment, to the contrary, has very little impact in the practice of the Office; (5) trade marks are protected by the fundamental right to property. However, nature and life cycle are very peculiar; (6) a right to intellectual property may be balanced, according to general principles, with public interests, in particular codified as absolute grounds for refusal; (7) whether public interests and property rights are well balanced in cases of relative grounds for refusal is doubtful; and (8) the fundamental policy right of consumer protection has (or should have) little impact on trade mark law, which rather regulates competition aspects between companies.
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