Small errors, not many people affected -- or are there hidden consequences?

Now that the Court of Justice of the European Union has closed its busy doors for the rest of the summer and we can all stop trying to chase the latest General Court decisions on sundry Community trade mark (CTM) appeals, it's time for a little gentle reflection on some of the finer points of CTM practice that might go unnoticed and unloved by the average consumer of CTM lore. And here's the first one.

Since somewhere in the middle of March 2013 the IPKat's friends at the Office for Harmonisation in the Internal Market (OHIM) have been enthusiastically publishing most CTM applications even (i) before the official search which they have to undertake under Article 38 of the Community Trade Mark Regulation (CTMR) has been notified to the applicant or (ii) less than one month after they have notified the search to the applicant. 

For those sceptics who are reluctant to believe everything anything this Kat writes unless there is some back-up evidence to support it, here are some real-life examples of recently-filed applications, together with their dates of publication and the dates on which the official searches were sent to the applicants or their representatives):

Application No.	Trade mark	Application Date	Date of publication of application	Date of search report sent to applicant or applicant’s representative
11986486	SOLSICANO	16-Jul-13	22-Jul-13	18-Jul-13
11978673	Burgtheater	12-Jul-13	19-Jul-13	21-Jul-13
11975091	ROCK ROSE	11-Jul-13	17-Jul-13	17-Jul-13
11974185	Casagami	11-Jul-13	18-Jul-13	17-Jul-13
11972312	THOMIL INTACT	10-Jul-13	17-Jul-13	17-Jul-13
11967635	velotravel	09-Jul-13	17-Jul-13	16-Jul-13
11964657	GIFTMEAPP	08-Jul-13	17-Jul-13	10-Jul-13
11962925	Tablet Measure	08-Jul-13	12-Jul-13	15-Jul-13
11962371	Audio Shuttle	06-Jul-13	17-Jul-13	15-Jul-13
11960796	Gold	05-Jul-13	22-Jul-13	16-Jul-13
11958634	ZIP BUDDY	04-Jul-13	17-Jul-13	17-Jul-13
11955093	SENSE	04-Jul-13	18-Jul-13	18-Jul-13
11954013	exclusiveONE	03-Jul-13	18-Jul-13	12-Jul-13
11953767	COLOUR MATTER	03-Jul-13	19-Jul-13	12-Jul-13
11949823	PURE INSTINCT	02-Jul-13	10-Jul-13	12-Jul-13
11946928	SINCERE	01-Jul-13	22-Jul-13	12-Jul-13
11944071	tibush	30-Jun-13	12-Jul-13	12-Jul-13
11943768	VERTIGO	29-Jun-13	15-Jul-13	12-Jul-13
11981552	energycoop	28-Jun-13	22-Jul-13	12-Jul-13
11980463	XTRAFAIR	28-Jun-13	09-Jul-13	11-Jul-13
11936929	Taming Aviation	27-Jun-13	03-Jul-13	11-Jul-13
11936044	Sambrosa	27-Jun-13	04-Jul-13	11-Jul-13
11933223	Brallet	26-Jun-13	05-Jul-13	11-Jul-13
11930757	appshaker	25-Jun-13	03-Jul-13	11-Jul-13
11927861	le Pure	25-Jun-13	04-Jul-13	11-Jul-13

So much for the facts.  Now for the law, as lovingly enacted by the appropriate organs of the European Union and binding upon three quarters of a billion good denizens of that zone and also, coincidentally, on OHIM.

Article 38(7) CTMR provides for the following (with emphases added):

“Upon publication of the Community trade mark application, which may not take place before the expiry of a period of one month as from the date on which the Office transmits the search reports to the applicant, the Office shall inform the proprietors of any earlier Community trade marks or Community trade mark applications cited in the Community search report of the publication of the Community trade mark application.” 

Article 39(1) CTMR further provides for the following (with emphases added):

“If the conditions which the application for a Community trade mark must satisfy have been fulfilled and if the period referred to in Article 38(7) has expired, the application shall be published to the extent that it has not been refused pursuant to Article 37.”

This Kat has been given to understand that, no doubt for the best of perfectly understandable good reasons, his friends at OHIM have yet to display their much-appreciated alacrity in correcting the errors to applications (eg by republishing them) as they are obliged to do under Article 80 CTMR, which states (with emphases added):

“Where the Office has made an entry in the Register or taken a decision which contains an obvious procedural error attributable to the Office, it shall ensure that the entry is cancelled or the decision is revoked.Where there is only one party to the proceedings and the entry or the act affects its rights, cancellation or revocation shall be determined even if the error was not evident to the party.”

It is no great secret that both the Commission and OHIM would like this official search to be abolished.

Now, what this Kat would like to know is this: since the procedural errors described above do not appear to provide grounds for invalidity or revocation under the CTMR, are there any consequences for proprietors if their CTMs are registered in breach of these requirements of the CTMR? And can OHIM in practice simply choose to ignore these Articles without any consequences?  

This Kat is pretty sure he doesn't know the answers to these questions, but he hopes one or more of his readers will. 

A katpat to Nigel Parnell (Registered Trade Mark Attorney, Phillips & Leigh) for drawing the attention of the IPKat to this issue.