In February this year the European trademark community took note of a leaked version of the European Commissions’s draft trademark legislation in reaction to the widely discussed Study on the Overall Functioning of the European Trademark System presented by the Max Planck Institute for Intellectual Property in February 2011 (pdf, 4.5 MB).

The so called ‘leaked proposal’, which immediately received a considerable press coverage (see e.g. WTR or MIP), basically consists of two draft regulations and one draft directive:

• draft amended Council Regulation No 207/2009 on the CommuniyEuropean Trade Mark,
• draft amended Regulation (EC) No 2868/95 on the fees payable to the OHIM,
• proposal for a Directive to approximate the laws of the Member States relating to trademarks (Recast).

The leaked proposal is a pre-final text which gives extensive insight into the EU Commission’s plans to substantively refurbish the Community Trademark (CTM) system as we know it today.

The reasons why and by whom the legislative proposal was ‘leaked’ instead of being officially published on the EU servers lie in the dark, but it can be assumed that the political intentions outweigh the legal ones. As the drafts have been sent, inter alia, to the member organisations of the so called OAMI Users’ Group, a consortium of international NGO’s active in the IP sector and accredited to the OHIM, the leaker apparently intends to provoke a reaction of stakeholders, for instance to test the acceptance of the new legislation in a more conspirative way instead of risking open and public criticism. 

The MARQUES association considers itself as a defender of trademark owner’s and system user’s interests. Compared to other member organisations of the OAMI Users’ Group, MARQUES appears to be more interested in a public discussion as it now again involved the public in a discussion that many other stakeholders consider a topic for closed expert circles only. The extensive comments (pdf, also here) published yesterday (20 March 2013) also include a detailled summary of the substance of the draft legislation.

By this open approach MARQUES refuses to become a silent accomplice of the leaker and his political interests and, even more important, reminds lawmakers that openness and public consultation are vital to a democratic community and the acceptance of its laws.

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