On September 26, 2006, the European Commission finally confirmed
that Bulgaria and Romania will become Members of the European
Union on January 1st, 2007.
The legal consequences for the owners of Community Trade
Marks (CTM) and Designs (CD) are the following (
see
the link):
Automatic extension of pending or granted CTMs and CDs without
any explicit request from the owners;
“Grand-fathering” of CTMs pending or granted before
January 1st, 2007: a word that is descriptive, non distinctive,
generic, deceptive or contrary to public policy and morality in
Bulgaria or Romania will not be refused by the examiner or be
subject to cancellation after registration if it was filed before
January 1, 2007. In particular:
CTM applications: the examination on absolute grounds of CTMs
applied for before January 1st, 2007 will consider only the situation
existing prior to enlargement; therefore, so-called “absolute
grounds” for refusal which become applicable merely because
of the accession of the two new Member States will not be taken
into account;
CTM registrations: Extended CTMs can only be cancelled on the
basis of a ground that was valid before enlargement (meaning that
they cannot be cancelled on the basis of grounds that become applicable
merely because of the latest accessions);
Oppositions: a CTM filed before January 1st, 2007 will not be
subject to opposition proceedings (without prejudice to the comments
below) if it is in conflict with an earlier national right registered,
pending or acquired in Bulgaria or Romania prior to the date of
accession. However, CTM applications filed between July 1st, 2006
and December 31st, 2006 can be subject to oppositions based on
earlier rights acquired in bona fides in Bulgaria and Romania
(so-called “exceptional opposition right”);
Respect of acquired rights in Bulgaria e Romania: the extended
CTM will be valid and enforceable in the entire EU, including
the new Member State, but not against an earlier conflicting national
right acquired in good faith. The holder of such an earlier right
will be able to prohibit use of the extended CTM in the new member
state.
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