In its judgment in case C-207/15 P, published on 22 June 2016, the CJEU found in favour of Nissan Jidosha KK and against the EUIPO in ex parte proceedings relating to the possibility of renewing an EU trademark in two stages.
Nissan had requested, within the six months preceding the due date, the partial renewal, in two classes, of a trademark registered in three. Subsequently, within the six-month grace period after the due date, the registrant submitted a further request for renewal in the remaining class, which the Office turned down.
Why was that? According to the EUIPO, the request for partial renewal in just two of the three classes in which the trademark had been granted registration entailed the surrender of the third class. The Office also maintained that reasons of legal certainty entered into play, given that the partial renewal in two classes had already been entered on the records, Nissan had been notified thereof, erga omnes effects had consequently been created and Nissan could therefore not be allowed to go back on its initial decision not to renew the trademark in the third class.
The EUIPO thus interpreted article 50 (relating to surrender) broadly and article 47 (relating to renewal) narrowly, contrary to the interests of Nissan in both cases.
However, in its judgment the CJEU has held that “it is not apparent from those provisions that the submission, during the periods referred to in Article 47(3) of Regulation No 207/2009, of requests for renewal of an EU trade mark, staggered over time and relating to different classes of goods or services, is prohibited”.
It seems strange that both the EUIPO and the General Court should have interpreted those provisions in a manner adverse to the interests of the trademark owner, rather than in favour thereof, when the controversy arose out of a gap in the regulations and the registrant and its representative acted entirely within the bounds of the law (at least according to the German, Portuguese, Finnish and Dutch language versions of article 47.3)
It is also rather surprising that the EUIPO should have come out so strongly in defence of legal certainty when we all know perfectly well that there is a six-month grace period for the renewal of an EU trademark and, therefore, that one should never assume that the registration may have lapsed until that term has expired. It appears to us that we should be equally cautious and draw no conclusions until after the expiry of that term in cases where the registration has been renewed but only partially.
We all look for legal certainty, but in doing so we ought to be consistent. From this standpoint, to deny a trademark owner the right to renew a registration in two stages, while the grace period is still running, would not seem logical when, in contrast, insufficient attention is paid to the need to keep the information on the status of the trademarks in the EUIPO databases current. On occasions updates are subject to delays of some months and this circumstance evidently generates uncertainty.
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