MARQUES had four points that stood out as particularly important for the Study.

The first one was harmonisation, i.e. 1) Procedures at OHIM, at national offices and between them, 2) Enforcement and 3) laws relating to unfair competition. On the subject of how to further harmonisation the Commission pointed out that as a matter of fact the H in OHIM stand precisely for Harmonisation, and it was discussed if and how OHIM could take a lead in connection with new steps to enhance the single market. Different options were debated, including a future role that OHIM might take on, particularly in relation to the Observatory. MARQUES took the view that harmonisation would be more likely to progress if OHIM performed the various tasks and acted as coordinator rather than the tasks being passed on to different other bodies.

The second point was the discussion around the perceived cluttering of the Registers. As already pointed out in the responses MARQUES feels that the CTM system works very well and that there is no reason to take any serious measures to hinder the free use of the system or indeed reduce the attraction of the CTM. MARQUES has made a statement in connection with the Benelux decision on genuine use. MARQUES asked for clarity to be established very quickly on this vital point. The Commission informed the delegation that the Benelux and Hungarian position was considered not to be in conformity with the wording and spirit of the relevant provisions of the CTM Regulation and to be out of line with the Commission’s understanding of ECJ jurisprudence. MARQUES suggested that if any measure were to be taken to alley fears of “cluttering”, it should be to make opposition and cancellation procedures as efficient and reliable as possible whilst keeping the fees reasonable. In this connection MARQUES pointed out that it would also be important that steps were taken to create harmonisation and efficiency in connection with conversion, which is an important functionality in the use of the CTM system.

The third point was the transfer of funds to national offices and the financial situation of some of these. MARQUES stipulated that whilst it had agreed to support the so-called Compromise Solution which included to partition of 50% of the CTM renewal fees to national office as agreed by OHIM Administrative Board and Budget Committee in September 2008 (prior to users’ observer status), it had been on certain conditions and only as a “full package”. In order to meet its own concerns regarding the 50% MARQUES had suggested in its responses that only offices that were fully independent, i.e. in control of their own income and expenditure, would qualify to receive funds through the partition of 50%. The concern was that those offices that run on a State budget and were not independent, would not receive the funds and that the funds would simply disappear into State coffers and be used for other purposes entirely. The Commission stated that they are not able to interfere in how the national offices are set up, but that they are in the process of studying how it will be possible to stipulate that the funds are used only for the intended purposes.

The fourth and last point was the remaining surplus of OHIM. MARQUES specified that it was important to ensure that the surplus did not continue to increase by taking the appropriate measures. In this connection MARQUES referred to the proposal to reduce renewal fees. Furthermore, the proposal by OHIM to refund the surplus to the users was discussed. MARQUES expressed interest in having this proposal looked at as one option, but was at the same time interested in discussing any other ideas of spending the surplus on non-recurrent IP related projects on an EU level, similar to the thoughts of increasing OHIM’s role in connection with the Observatory. The Commission confirmed that they are also looking at increasing the number of ideas of how to deal with the remaining surplus. It was agreed that the responses to the Max Planck survey might give rise to more such ideas and that this topic needed to be analysed carefully to come up with projects that would be of valuable benefit to users.

MARQUES will keep in close contact with the Commission and continue to be involved in the discussions.