The special legal character of the EU

European Journal of Migration and Law
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An enhanced distinctive character through use is deemed to increase the likelihood of confusion with a later mark. To what extent are foreign trademark registrations recognised in your jurisdiction? A registered EU trademark bears a presumption of validity unless and until it is invalidated or revoked. The owner of a registered EU trademark has the right to prevent all unauthorised third parties from using, in the territory of the European Union:.

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Owners of EU trademarks may also take action against counterfeit goods in transit in the European Union, unless the importer can prove that there is no trademark infringement in the country of final destination. Any natural or legal person, including authorities established under public law, may register an EU trademark.

Although in theory the examination criteria for non-traditional marks are the same as those for traditional marks, in practice it is more difficult to establish that such marks are distinctive. Further, signs which consist exclusively of the shape or another characteristic of the goods which results from the nature of the goods, which is necessary to obtain a technical result or which gives substantial value to the goods are subject to a separate ground for refusal.

If a mark is refused or incapable of registration due to lack of distinctiveness, descriptiveness or because it has become customary in the current language of the trade ie, generic , the applicant may overcome such rejection by proving that the mark has become distinctive in relation to the goods or services claimed based on its use. The evidence must prove that distinctiveness through use was acquired:.

Where the mark is devoid of distinctive character throughout the European Union which is usually the case for non-traditional marks , proof of acquired distinctiveness for each individual member state, while ideal, is not required. Extrapolation of evidence of acquired distinctiveness to other member states is possible, provided that the markets concerned are homogenous and at least some evidence of use is submitted for the area to which the evidence is extrapolated.

Sources and hierarchy of EU law

On what grounds will a mark be refused registration ie, absolute and relative grounds? Any one of the absolute grounds listed in Article 7 1 of the EU Trademark Regulation is sufficient for the refusal of an EU trademark application, as follows:. Each of the above grounds of non-registrability is sufficient even where the ground applies only in a part of the European Union, including a single member state. Upon successful opposition by a third party, an EU trademark application will not be registered based on earlier rights invoked in relation to the following relative grounds listed in Article 8 of the EU Trademark Regulation:.

Are collective and certification marks registrable?

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What people say. Following the entry into force of the Lisbon Treaty, the same value was also given to the Charter of Fundamental Rights. International agreements concluded by the European Union are subordinate to primary legislation.

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Secondary legislation is the next level down in the hierarchy and is valid only if it is consistent with the acts and agreements which have precedence over it. Creation of a legal order for the Union to achieve the objectives stipulated in the Treaties. Primary legislation of the European Union b. Secondary legislation of the European Union.

They are regulations, directives, decisions, recommendations and opinions.

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EU institutions may adopt legal acts of these kinds only if they are empowered to do so by the Treaties. The limits of Union competences are governed by the principle of conferral, which is enshrined in Article 5 1 TEU. In the absence of the necessary powers to attain one of the objectives set out in the Treaties, the institutions may, in certain circumstances, apply the provisions of Article TFEU. Effectively, following Lisbon, the Community method applies to all European policy areas, except for common foreign and security policy. The only exceptions are the common foreign, security and defence policies, to which the intergovernmental method still applies.

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There are, in addition, various forms of action, such as recommendations, communications and acts on the organisation and running of the institutions including interinstitutional agreements , the designation, structure and legal effects of which stem from various provisions in the Treaties or the rules adopted pursuant to the Treaties. White papers, green papers and action programmes are also important, given that the Commission uses these documents to agree long-term objectives.

The Lisbon Treaty introduced a hierarchy among secondary legislation by drawing a clear distinction in Articles , and TFEU between legislative acts, delegated acts and implementing acts.

Legislative acts are legal acts which are adopted through the ordinary or a special legislative procedure. Delegated acts for their part are non-legislative acts of general application which supplement or amend certain non-essential elements of a legislative act. The power to adopt these acts may be delegated to the Commission by the legislator Parliament and the Council.

The objectives, content, scope and duration of the delegation of power are defined in the legislative act, as are any urgent procedures, where applicable.

In addition, the legislator lays down the conditions to which the delegation is subject, which may be the authority to revoke the delegation or the right to express an objection. Implementing acts are generally adopted by the Commission, which is competent to do so in cases where uniform conditions for implementing legally binding acts are needed. Implementing acts are a matter for the Council only in specific cases which are duly justified and in areas of common foreign and security policy.

European Union law

Where a basic act is adopted under the ordinary legislative procedure, the European Parliament or the Council may at any time indicate to the Commission that, in its view, a draft implementing act goes beyond the implementing powers provided for in the basic act. In this case, the Commission must revise the draft act in question. Regulations are of general application, binding in their entirety and directly applicable.

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