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The EUIPO convergence program: A model for ASEAN?

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Abstract

INTRODUCTION Since the 1990s trademark law in the EU member states is largely harmonized. The provisions governing signs eligible for protection, protection requirements, scope, and limitations of protection have been aligned both horizontally between the member states and also vis-à-vis the overarching trademark system applying on the EU level. The legal instruments employed to achieve those goals were the Trademark Directive (TMD), first enacted in 1989, and now recast as directive (EU) 2015/2436, and the Community Trademark Regulation (now: EU Trademark Regulation, EUTMR) of 1994, amended by Regulation (EU) 2015/2424, with the codified text entering into force on October 1, 2017 as Regulation (EU) 2017/1001. The recent reforms further enhance the overall level of alignment. In addition to new substantive issues such as transfer of marks, harmonization has been extended to procedural issues, such as application formalities and procedures for opposition and cancellation. However, even near-complete harmonization (or even unification) of the legal rules governing trademark law in the EU and its member states does not guarantee that those rules are applied consistently in practice. Indeed, practitioners often complain about the discrepancies experienced when filing applications or enforcing trademark rights in different member states and/or under the EUTMR. To improve the situation, the so-called convergence program has been launched by the EU Intellectual Property Office (EUIPO) under its old name OHIM. While it is tailor-made to the relevant structures and issues under EU law, the question shall be posed as to whether the basic concept on which the convergence program relies might possibly also serve as a model in other regions such as Association of Southeast Asian Nations (ASEAN), where substantive harmonization beyond the international minimum is not on the agenda. THE CONVERGENCE PROGRAM IN THE EU CONTEXT Legal and Administrative Framework As noted in the introduction, European trademark legislation pertains to two different levels. On the national level, member states are obliged to align the provisions of national laws with the mandatory rules enshrined in the TMD. Additionally, the EUTMR provides an autonomous system pertaining to the EU level. In the core aspects of substantive contents - and, after the legal reforms, also in most procedural aspects - the trademark systems on the national and the EU level run exactly parallel, with only a few exceptions that are pointed out in the text that follows.

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