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“Redtube/REDTUBE”

Commission Regulation (EC) No. 2868/95 of 13 December 1995 Implementing Council Regulation (EC) No. 40/94 on the Community Trade Mark, Rule 18(1) Jager & Polacek GmbH v. Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM)

  1. 1.

    It is apparent from Title II of the Implementing Regulation that proceedings to oppose registration of a trade mark comprise two separate stages. Rule 17 of that regulation sets out the conditions under which the opposition may be regarded as admissible and states, at paragraph 5 of that rule, that the decision which establishes that the opposition is deemed not to have been entered or that it must be declared inadmissible is to be notified to the applicant. It follows that the stage at which admissibility is examined may lead to the adoption of a decision terminating the proceedings, which, as such, is subject to appeal, pursuant to Article 57(1) of Regulation No. 40/94.

  2. 2.

    Moreover, it is apparent from the very wording of Rule 18 that the opposition proceedings themselves, that is the inter partes stage, commence only when OHIM has verified that the opposition is admissible and that none of the grounds set out in Rule 17 preclude admissibility.

  3. 3.

    Lastly, it follows from Article 57(2) of Regulation No. 40/94 that there may be measures which, while they are adopted in the course of the proceedings and do not terminate them, nevertheless constitute decisions.

  4. 4.

    It is apparent from the examination of the abovementioned provisions as well as of Article 77a of Regulation No. 40/94 that, where OHIM finds that the opposition is admissible, the inter partes stage of the proceedings commences. For a period of six months, where the decision by which opposition was found to be admissible contains an obvious procedural error, it may be withdrawn ex officio or at the request of one of the parties, which has the effect of terminating the opposition proceedings. Once that period has expired, the inter partes stage of the proceedings must be pursued and a decision must be given. In the latter instance, the defendant to the opposition proceedings may bring an appeal before the Board of Appeal and argue that the opposition was inadmissible.

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Decision of the European Court of Justice (Second Chamber) 18 October 2012 – Case No. C-402/11 P. “Redtube/REDTUBE”. IIC 45, 107–108 (2014). https://doi.org/10.1007/s40319-013-0154-y

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