Category Archives: Sales and distribution

tag4

2016: New year, new trademark system

We are set to witness a substantial trademark legislation reform in 2016. The EU Commission, the Council and the European Parliament are at a very advanced stage with their preparatory work in this area. If adopted, it will be the most significant trademark reform since the complete harmonization of national trademark systems and the introduction of a community trademark in the 90s.

The draft reform includes a new Trademark Directive to be implemented by Member States in the medium term, as well as a new Community Trademark Regulation, which would become applicable in the short term once adopted.

Among the most relevant modifications envisaged by the new regulatory package, we highlight the following:

  • Symbolically, the Community Trademark will be redubbed “European Union Trademark”. The OHIM will be redubbed European Union Intellectual Property Office (EUIPO).
  • The legal requirement for trademarks to be graphically represented will disappear, opening the gates for new forms of non-traditional trademarks.
  • The harmonization of national trademark systems will be consolidated. Member States will need to incorporate administrative proceedings for trademark cancellation in their respective national Offices. In Spain, the competence for trademark cancellation is currently attributed to Courts and Tribunals. Thus, the reform will reduce the cost of litigation to cancel trademarks.
  • The fees relating to Community Trademarks will be modified. Currently, a basic fee includes up to 3 classes of products and services. This system is inefficient in most cases, where applicants are only interested in registering trademarks for one or two classes of products and services. With the reform, we expect that each class of product or service will be paid separately. This is already the case for internal Spanish trademarks.
  • Renewal fees are substantially reduced.
  • The system of product and service designation will be modified as a result of the IP Translator case and the consequent modification of the class heading system.

To sum up, the reform is significant but not groundbreaking. The new regulatory system will seek to adapt and improve certain aspects that have proven inefficient or improvable over many years. We hope the work of the EU institutions will proceed as expected and will keep you informed as soon as the reform is adopted.

Stay tuned!

photo credit: Javier Prieto (ganso.org) via photopin cc

Legislative Reform of the Spanish Consumer Protection Act

On Friday, June 13th (not a good date for the superstitious amongst us), Act 3/2014 of March 27th, 2014, yet another amendment to the Spanish Consumer Protection Act and supplementary legislation come into force.  The new regulatory regime is therefore applicable to agreements concluded with consumers from that date onwards.

The purpose of this legislation is to introduce into the Spanish Consumer Protection Act the amendments necessary in order to implement Directive 2011/83/EU of the European Parliament and  the Council, on consumer rights.

The Directive established the new legal framework for distance and off-premises contracts and amended the European rules regarding unfair terms in consumer contracts and certain aspects of sales and guarantee of consumer goods.  Its aims include:  consumer protection  at the European level, in particular,  in relation to sales made on the Internet; the consolidation of the Internal Market; and  strengthening  legal certainty for  consumers and  traders, as the previous  regulatory regime  exposed  important gaps in the European rules.

Consequently, the most relevant legislative amendments introduced by  Act 3/2014 are:

  • New definitions of consumers and traders;
  • Joint regulation of distance and off-premises contracts;
  • Standardized and broader pre-contractual information obligations regarding, in particular: a) deposits or other financial guarantees (i.e. blocked amount on the consumer’s credit card); b) legal guarantees; conditions of after sales services and commercial guarantees; and c) supply contracts on digital content, where the consumer has to be informed about the use of this content and its technical limits, protection mechanisms and regional codification, as well as the interoperability of digital products with hardware and software;
  • Modification of the rights of withdrawal of consumers, with a new regulation that introduces a standard form which the consumer may use and an extension of the time-limit for withdrawal   to 14 days. If the trader does not provide information concerning the consumer’s rights of withdrawal, the time-limit is extended to two months from the beginning of the initial period.
  • Implementation of the TJEU ruling regarding unfair terms, which enables the national court to rule on the nullity of such terms in consumer contracts and to integrate different provisions according to the principles of good faith to the contract.

It is clear that the purpose of the new Spanish Consumer Protection Act is to achieve coherent regulation by virtue of the entire Spanish legislative system, especially in relation to the sector-specific regulation of consumer protection. The Consumer Protection Act guarantees the application of each sector-specific rule which gives significant protection to the consumers subject to the rules of harmonization in the terms established by European Union law. We will see whether the 13th will be a bad omen for consumer protection in the harmonized market or whether we can hope for a reasonable and Internal-Market-related interpretation by the administrative authorities and courts in Spain. In any event, consumer contracts used until today should be fundamentally revised.