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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
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Annual Conference 2023: Panels 7 and 8

Brands, influencers, social media and AI were discussed in part 7 of the MARQUES Annual Conference in Berlin, “Next generation content”, which was chaired by Magdalena Borucka, Taylor Wessing, UK.

Linda Marquardt, Interbrand, Germany described how brands need “ongoing incremental change” to stay in the game and “iconic moves” to leap ahead. This means developing new skills and capabilities. Micro-influencers can play an important role in this, as in the recent Hugo Boss “Be Your Own Boss” collaboration with Khaby Lame.

For Nike, influencers include trainers and coaches that create human and close connections with different audiences. “Authentic empathy” comes from connecting with customers through a common culture.

Some brands are also using digital influencers – for example, Samsung and Lil Miquela – across social media channels. “Users get more inspiration from virtual influencers than from humans,” said Linda. Brands such as Jacquemus, Heinz and Nike are using powerful AI-generated advertising campaigns. “It’s amazing and perplexing what AI can do for us,” she added. “We are able to create unequalled experiences while retaining integrity … We call this brand leadership.”

Gala Dinner and dancing: On Thursday night, delegates enjoyed a four-course Gala Dinner at the Intercontinental, followed by dancing, with MARQUES Chair Antony Douglass acting as DJ.

The Annual Conference closed with a short video showing highlights from the week. Antony thanked everyone who had taken part and contributed to the success of the Conference and introduced the 38th Annual Conference, which will take place in Stockholm from 24th to 27th September 2024.

Shona Tennant, William Grant & Sons, UK discussed how influencers are used and managed in the alcohol industry. Her company has 140 brand ambassadors globally and many of them have now become lifestyle influencers in their own right. “We influence groups of people who can influence other groups of people. We’re looking bigger rather than smaller,” she said. “It’s a very effective way of marketing … there is excellent ROI on working with influencers.”

However, it's important to ensure that corporate values and influencers align, and everyone understands the boundaries: in the alcohol industry, that means responsible drinking and protecting minors. This requires diligence checks on demographics, quality and local law restrictions. For example, William Grant & Sons does not use TikTok or Snapchat as these are aimed at younger demographics. It also has the right to terminate immediately where the brand is brought into disrepute.

Matthias Weiden of Meta expanded on the risks of influencer marketing/branded content. He highlighted the importance of transparency by using the #brandedcontent tag. “We want creators to be honest with their community,” he said. Influencers on Instagram can tag business partners only if they have approval to do so. A recent change enables users to tag multiple brands or no brand at all.

Julia Mischke, Media Authority of North Rhine-Westphalia, Germany provided a guide to media regulation, which is conducted by national or regional authorities in Europe. She stressed that every form of compensation (whether financial or otherwise) matters when it comes to regulation. Germany’s 14 regulators carry out random sampling and research, and also investigate complaints from users.

Its actions range from sending letters of advice to bringing administrative proceedings and issuing penalties (up to €500,000). “Luckily we do not have to use the procedures very often. In 90% of cases we can resolve things just by talking,” said Julia.

EU case law update

The final session of the Conference focused on recent EU case law. Two cases concerned counterclaims:

  • Bodman-Ludwigschafen (Case C-256/21) concerning the trade mark Apfelzügle. “The most interesting part of the judgment is not that the counterclaim went ahead … but the Court made a clear statement that it is autonomous EU law and not subject to national procedural law,” said Verena von Bomhard, Bomhard IP, Spain. Sven Stürmann, Chairperson of the 2nd Board of Appeal, EUIPO (but speaking in a personal capacity) noted however that when a main appeal at EUIPO is withdrawn, any counterclaim also falls. “If you are a defendant, you may want to file your own appeal,” he said.
  • LM v KP (Case C-654/21) concerning the trade mark Multiselect, in which the Court said the scope of the counterclaim “cannot be restricted to” the subject matter of the infringement action, and a counterclaim is not a mere defence. As session chair Roderick Chalmers, AKD Benelux Lawyers, The Netherlands said, there are arguments for and against this position.

The following cases concern the relevant point in time for assessment and legitimate interest:

  • Basmati, Ape Tees and Shopify (Case C-751/22 P pending) which all arose from Brexit but have wider implications. These cases have led to different outcomes at the General Court regarding the significance of the date of the Board of Appeal decision, and are all pending at the CJEU. “It’s not only because of Brexit. It’s the fundamental question of: when do you need to have an earlier right?” said Sven. These cases prompted considerable discussion with the audience.
  • Bioplak/Biolark (Case T-459/22) in which the International Registration died between the Board of Appeal decision and the General Court hearing. Surprisingly, the Court took the IR into account.

Sven said there are almost 700,000 figurative EU trade marks registered and recent cases on figurative marks show a shift before the General Court:

  • The former approach was typified by Case T-151/17, in which signs depicting mythical animals were held to be dissimilar at the Board, but the Court said there was a low degree of similarity.
  • More recently, in Cases T-596/21 and T-491/22, signs resembling wolf heads and comic figures with hats were found to be dissimilar. “This is surprising as there is a greater trend towards stylisation of brands,” said Verena.

Finally, the panel looked at reputation:

  • Case T-639/21 CB v CCB: in an earlier judgment in this litigation, the CJEU said reputation must not be taken into account when comparing signs. “I dislike the notion that you cannot take into account reputation of the earlier mark when assessing similarity,” said Verena, adding that public perception is key. “We need an empirical study on how consumers perceive reputation in a mark as well as weak marks,” said Sven.
  • Cases T-4/22 PUMA and T-509/22 BIMBO v BimboBIKE indicate the General Court is becoming more restrictive when it comes to trade marks with a reputation.
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Annual Conference 2023: Panels 5 and 6

Delegates at the MARQUES Annual Conference warmly welcomed new announcements and updates on the Madrid System during a panel today.

Debbie Roenning, Director of Madrid Legal Division, Madrid Registry, Brands and Designs Sector, WIPO, Switzerland highlighted progress towards accession in several countries, including South Africa, Qatar, Saudi Arabia, Bangladesh, Fiji, Papua New Guinea, Sri Lanka, Tonga, Malta, Grenada and St Vincent and the Grenadines. In addition, she said China is planning to extend the Protocol to Hong Kong SAR soon.

“It is fantastic to see the map expanding every year,” said Theodora Goula, Hugo Boss, Switzerland. “We would like to see more countries in Latin America and Asia joining. When a country joins Madrid, we often see that their IP standards are also raised.” Anna-Lena Wolfe, EF Education First, Switzerland agreed and added: “Madrid is an administrative system but not everything is harmonised, so you still have to be prepared to handle office actions.”

Africa accounts for 17% of the world’s population, said Mariette Du Plessis, Adams & Adams, South Africa; 40 African countries are members of Madrid (including the OAPI member states) but notable gaps include South Africa, Nigeria, Ethiopia, Libya and Angola. With brand awareness increasing, many owners of famous global brands have enforcement challenges in Africa so further accessions would be welcome.

“From my perspective, digitalisation of records is crucial,” said Mariette. “We have a lot of potholes in Africa – and we hope to either fill in or avoid them.” These potholes include infrastructure, resources, power supply and the need for training. “The tide is turning. For now, brand owners should research and assess their strategy for each country and avoid a broad-brush approach.” She also encouraged IP practitioners to assist with training and capacity building.

Adding languages

The annual Lewis Gaze Memorial Award was presented to Elina Marie Kraft for her paper on “The meaning of generic terms and descriptive indications in trademark law”. Her prize includes fully inclusive attendance at next year’s MARQUES Annual Conference in Stockholm.

WIPO has received proposals to add Arabic, Chinese and Russian to the Madrid System to complement English, French and Spanish. “In the Working Group this decision is highly politically sensitive and we have been discussing it for years,” explained Debbie. Consultations have revealed that users have reservations, and these will be fed back to the Working Group in November. However, WIPO has stated that fees and processing times will not increase if new languages are added.

Jessica Le Gros, Baker McKenzie, UK added that language is a very important topic and adding new languages will make the Madrid System more accessible. However, MARQUES has some practical reservations and the International Trade Mark Law and Practice Team conducted a survey, which had 362 responses from 56 countries. About 80% of respondents said they would not use the System more if new languages are added, though there was support from China for introducing Chinese.

In the survey responses, people also asked: why these languages and not others? And there were a lot of concerns about practicalities including machine translations, said Jess. Theodora stressed the importance of keeping the system uncomplicated and efficient.

Technology improvements

Debbie highlighted a new feature of Madrid Monitor, which enables you to check the current status of protection, Nice class and effective date for each designated contracting party. Anna-Lena said the new functions are welcome but it was unfortunate that offices and systems have different interfaces which users need to become familiar with: “My wish is for some standardisation between the systems across the organisations.”

Other recent changes that Debbie highlighted include early renewal of international registrations from six months before the due date. Another change is that on 1 February this year, the graphical representation requirement was removed – but only where offices of origin no longer have this requirement. “Hopefully more members will make this change in the future,” she said.

One very significant reform coming into effect on 1 November 2023 is that national/regional IP offices will have to give holders of international registrations (IRs) a minimum time period of 60 days or two months to respond to provisional refusals. From the same date, WIPO will give owners of IRs a clear indication of the relevant start and end date for provisional refusals: this received a spontaneous round of applause from the audience!

“It’s absolutely fantastic that WIPO has listened to the voice of users,” said Jess. “It shows that we can achieve changes that make the IR system more efficient for users.”

The panel was chaired by Gavin Stenton, Penningtons Manches Cooper LLP, UK.

The day’s first panel focused on platform liability and new regulations such as the EU Digital Services Act and the Omnibus Directive. The panel – comprising Andreas Lubberger, Lubberger Lehment, Germany, Germany, Harrie Temmink, Head of Service Intellectual Property in the Digital World, EUIPO, Spain and Edward Taelman, Allen & Overy, Belgium – discussed the latest measures and their impact on brand owners.

The MARQUES Annual Conference continues with workshops this afternoon and further panel sessions tomorrow (Friday).

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Annual Conference 2023: Parts 3 and 4

The third part of this year’s MARQUES Annual Conference in Berlin looked at “People Power” – the interaction between brands and consumers.

People power

The panel took the form of a discussion between two brand owners, a lawyer and an influencer and was chaired by Nick Foot, Sandoz International GmbH, Germany.

Tanya Fickenscher, Major League Baseball, USA described how baseball has gone from radio to having its first fame streamed into a virtual ballpark – something that happened yesterday. Lesley Matty, Mejuri, USA represents a much younger brand and she described how focusing on the digital footprint helps the brand stand out.

Anke Nordemann-Schiffel, Nordemann Czychowski & Partner, Germany said that risks multiply as you have to take account of the consumer response throughout the life of a trade mark, while Paul Schrader, an artist, blogger and influencer explained how direct connections had grown during the pandemic.

The panellists discussed the impact of business trends on trade mark clearance. Anke said it’s necessary to look at clearance more globally: “You have to look at class 9, at services. You will have more potential conflicts as you expand into other classes.” Lesley agreed that as a company grows it bumps against the limits of its risk tolerance: “Everyone is in the same space and on top of each other.”

In this fast-paced world, speed is critical for brand owners – but it has to be balanced with resources. Tanya noted that bigger companies are more risk averse, and added that her sector faces particular challenges: “Baseball is in a fishbowl and can attract unwelcome media attention.”

The panel agreed that trade mark rights are not as absolute as they used to be, as brand owners have to accept a certain amount of input from consumers via social media, which is loud and may be irrational. In practice, when it comes to enforcement, communication is vital. As Tanya said: “Today we are more likely to pick up the phone rather than send a template C&D letter.”

Paul emphasised that brands need a human touch, and that is why influencers are important: they can reach out to new audiences and provoke engagement. But influencers raise their own challenges and the panel asked: have we reached influencer saturation?

One challenge for brands is that the more you engage with consumers the less control you have. That means having a balanced approach and prioritising education. “A long-term connection with trust is the best way to get results. It has to be a good fit,” said Paul.

For brand owners, the key takeaway is to serve the business. As Anke said: “We need to reinvent ourselves and the legal advice we give. We need to be creative and see what kay come.” Other tips the panel offered included: balance reactive and proactive actions; build long term relationships with creatives with trust; consider reviewing advice regularly; be comfortable with challenging the business; and use clients’ budgets effectively.

Brands in a time of crisis

The final session of the first day looked at brands in a time of crisis, focusing on the challenges – and also opportunities – created by the Covid 19 pandemic as well as other crises such as war, recession and climate change. It was chaired by Tanya Meedom, Elmann IPR Law Firm, Denmark.

James Brady, Unilever, UK said that, for a global brand owner such as Unilever, there is always a crisis somewhere and the three priorities for brands are authenticity, communication and flexibility. Using the example of Unilever’s Lifebuoy soap brand during the pandemic, he showed the importance of clear and consistent communication, credibility and flexibility, including co-branding within the portfolio, entering new categories with existing brands and partnerships with other companies.

Tapio Blanc, F. Hoffmann-La Roche AG, Switzerland explained how Covid spurred the pharmaceutical industry to develop new products at unimaginable speed. “We had to take risks. The path was not straightforward,” he said; “We were building the plane while it was flying.” Innovations for Roche included collaborations with competitors and others in the industry and the use of the house mark rather than a brand on Covid-19 test kits. Tapio also described how Roche had responded to the war in Ukraine, by focusing on moral responsibility, health and safety and realistic profit expectations.

Building on this, communication expert Astrid Haug, SoMe, Denmark discussed the lessons from Carlsberg’s experience of withdrawing from Russia. She stressed that crises are risky for brands, and more responsibility is put on them: “Companies are expected to take a big role. You have to be ahead of the curve. Regulation is often behind public opinion.

Also, as the speakers agreed, in a crisis time speeds up and you can easily be accused of responding too slowly, particularly if you don’t manage expectations. “It’s always good to over-communicate,” said Astrid.

The MARQUES Annual Conference continues until Friday this week.

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Annual Conference 2023: Parts 1 and 2

“Building trust takes a long time, but it can be easily lost,” said session chair Simone Pelkmans, Deloitte Legal, The Netherlands, introducing the first panel session of this year’s MARQUES Annual Conference in Berlin.

She added that the 2023 Edelman Trust Barometer showed that people view business as competent and ethical – but want businesses to do more to address social and economic challenges.

Trust in brands

The panel’s first speaker, designer André Stauffer of Metadesign.com, Germany said he trusted in brands for three reasons:

Brands have a mission: “They have an important role because people trust them, they have visibility and people expect them to take a stand,” said André, citing Patagonia’s “Don’t buy this jacket!” campaign.

Brands have personality: for larger organisations, this is rooted in brand positioning – their purpose, values, competencies, benefits and experience. “Most successful brands have done this exercise and they are ready to tackle the future,” said André.

Brands have design: this is a powerful tool that can transport emotion, provide information and create excitement as with the Roarington virtual ecosystem of classic cars.

The Annual Conference was formally opened by Eva Schewior, President of the German Patent and Trade Mark Office. She described the development of trade marks in Germany form the founding of the Imperial Patent Office 146 years ago, through the landmark 1894 Act on Trade Marks, the introduction of service marks in 1979, digitalisation in the 2010s and the recent registration of the 3 millionth trade mark application.

She highlighted the recent growth in applications from China, including for marks with Chinese characters, the prominence of words and colours relating to sustainability in many trade mark applications today and the impact of digital technology – with more than 75 applications so far including “NFT” and more than 1,200 including “Blockchain”.

The most important thing for a branding agency is empathy and understanding of the client’s business. Current trends include sustainability – which has its own visual code, with simplified hand-drawn logos – diversity and accessibility – which affects the colours used in branding. “Storytelling is part of branding,” said Andre. “Let’s contribute to brands that matter.”

Change and consistency

Claudia Pappas, Thyssenkrupp Intellectual Property GmbH, Germany spoke about “changing to stay the same”. She described the evolution of Thyssenkrupp since 1811 and the development of its brand. “Today the brand is about trust, modernisation and unification,” she said: the wording is all lower case and the previous arch and ring logos have been merged.

At one point, the company had 180 individual brands and no central database of trade marks. “We now have trade mark coordinators in each and every business unit and in the regions,” said Claudia. “For engineers, it’s not normal to work with brands … you have to train them that brands are important,” she added. From 2016 to 2018, a new brand promise led to the new logo and claim “engineering.tomorrow.together”.

Today, the company is facing new challenges ranging from the shortage of skilled workers to high energy prices and the green transformation. It has therefore launched the “Take a Chance/Make a Change” campaign made by employees for employees.

Thomas Wagner shared some lessons from Faber-Castell AG, Germany – a company that dates back to the mid-18th century and the producer of the first branded pencil. Its founder was also one of the initiators of the German Trade Mark Act.

In the last 20 years, Faber-Castell has become a premium brand and also developed its cosmetics business. It has also promoted education and social responsibility, and has a unique forestry project in Brazil. “A strong value system has created trust among employees,” said Thomas, who also emphasised the importance of forecasting global trends. One of these is that consumers are switching to lesser-known brands that are more sustainable.

Brand values in diversity

Bill Budd, Virgin Enterprises Ltd, UK explained how Virgin has sought to retain its values as it has expanded from a small company to one with diverse products and services in a range of sectors, while remaining family led. “Our purpose – changing business for good – is very important,” said Bill. “Everything we do tries to ladder up to that responsibility.”

“We’ve diversified enormously over 50 years,” he added, and sticking to its values has been difficult at times, but it has always been purpose-led. For example, in the 1980s Virgin founded the Mates brand of condoms to help tackle the AIDS crisis.

The brand purpose is embedded in its amended articles of association (which require directors to consider all stakeholders), its purpose filter and philanthropic enterprises such as Virgin Unite and Virgin Startup.

For the Virgin Atlantic airline, this has led to new products for single parents, removing Seaworld from its packages and introducing genderless uniforms, as well as changes to its advertising to emphasise inclusivity while remaining bold and original.

The metaverse

In part 2 of the Conference, Risks and Rewards for Brands in the Metaverse, speakers discussed the future of brands in Web 3.0 and blockchain, generative AI and 3D and immersive tech. During the session, Nelly Mensah, LVMH, France provided an explanation using as examples Dior NFT-enabled sneakers (modelled by panel chair Leo Longauer of LVMH) and Tiffany X Cryptopunk NFTIFFS. “You can participate in Web 3.0 while concentrating on what differentiates your brand,” said Nelly.

Generative AI is being used by brands to support customer service and client advisers, for example matching foundation colours. The metaverse is bringing 3D content, digital fashion, 3D display innovation and microverse mini-games, said Nelly: “We’ll see digital content overload on physical a lot more … It’s not just about games.”

Jana Arden, Capgemini, Switzerland, described the development of the metaverse since the early 1980s. She explored virtual economies and products, connect virtual and physical spaces, brand premiumisation and engagement and NFT loyalty programmes. She said brands should ask: “What does the metaverse mean for us? What is our relationship with metaverse?”

Jana also warned that the customer experience is not optimised yet, and there are lots of questions ranging from data and privacy to taxation. “We need to speak about the non-successful cases as well as the successful cases,” she added.

Law and the metaverse

The Welcome Reception on Tuesday evening had a German theme, with pretzels, schnitzels and currywurst and a brass band providing the entertainment.

Finally, Julius Stobbs, Stobbs, UK discussed the legal risks. He introduced Blockchain domain names (subject of a recent article by the MARQUES Cyberspace Team) such as .eth, .crypto, .nft and .handshake, saying: “They’re a key aspect of getting involved in Web 30 and metaverse so there is a brand risk of not getting involved with them.”

Two of the big problems are anonymity and decentralisation. “There are a lot of unscrupulous parties,” said Julius, “and no set regulation.” However, traditional enforcement methods may be relevant including to get disclosure and freeze assets. “We are seeing the courts start to look at these things,” he said, citing recent cases in the EU, UK, US, Singapore and China including the Hermès International v Rothschild decision in New York.

Courts are also looking into some issues raised by AI, notably copyright, and the EU, US and UK are all looking into the regulation of AI. “There will potentially be a totally different regulatory framework in the future,” said Julius. “We need to watch the space to see how it develops.”

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WIPO Madrid System in-person seminar

Class 46 readers may be interested to know that WIPO is hosting a practical seminar on the Madrid System in Geneva on 2 and 3 November.

The seminar is open to seasoned Madrid System users, who have more than two years of experience using the Madrid System or handle at least five international trade mark registration.

The seminar includes guest speakers Ms WANG Yifei of CCPIT Patent and Trademark Law Office, China, Mr Howard LEE of Namdong Law Office, Republic of Korea and Ms Kali Marshall of IP Australia as well as speakers from WIPO.

WIPO states:

We’ll be diving into a host of processes, procedures and tools, providing you with valuable tips and insights to ensure that you can get maximum benefit out of the Madrid System. And, you’ll have the chance to exchange knowledge and ideas with other trademark professionals from across the globe.

Registration is open until Tuesday 24 October and the fee is Sfr600 (including lunch and coffee breaks). The provisional programme is available here.

The seminar opens at 9.00 on 2 November and finishes at 17.30 on 3 November.

Find more information and book your place on WIPO’s website here.

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MEPs approve non-agri GI proposal

Hot off the GI press: the MARQUES GI Team is happy to report that on Tuesday, 12 September, the European Parliament voted in favour of adopting the Regulation on geographical indication (GI) protection for crafts and industrial products, also commonly referred to as the non-agri GI protection.

The system has similar features as the current agri GI schemes, though for the non-agri GIs the protection is based on the product’s quality or reputation and not to the ‘terroir’ (the soil, climate, etc).

Registration will be a two-phase procedure, first a national, then a Union phase. However, for those Member States who do not have a national scheme for non-Agri GIs, the application will be directly submitted on the Union level, with the EUIPO serving as the administrative authority and responsible for the examination.

Bearing in mind that for agri GIs currently the European Commission is the competent authority, the appointing of the EUIPO is a significant one. Opinions vary if the choice of the EUIPO is a good or bad one.

Points for discussion

Further elements that are worth mentioning, which will also be discussed in the GI workshop during the MARQUES Annual Conference on 21 September, led by the GI Team, are the following:

Non-agri GIs will use the same PGI logo as alcoholic drinks and agricultural products.

The scope of protection, in the final text, has defined evocation as one of the situations GIs are protected against. This “shall be deemed to arise, in particular, where a sufficiently direct and clear link with the product covered by the registered geographical indication is created in the mind of the average European consumer who is reasonably well-informed and reasonably observant and circumspect” (article 40 paragraph 2).

Also, the protection is explicitly applicable to domain name use, goods in transit and online sales (electronic commerce).

Next steps

Once the Council formally approves the text, and it is entered into force 20 days after its publication in the Official Journal, the new EU non-agri GI scheme will be applicable in two years. This may well result in between 300 and 800 craft and industrial products being protected under this scheme.

By Thera Adam-van Straaten, Senior Office Partner Netherlands, Eversheds Sutherland and a member of the MARQUES GI Team. The Team’s workshop ‘What you always wanted to know about GIs but never dared to ask!’ takes place in Berlin on 21 September at 14.00 and again at 15.30.

Read more about the vote on non-agri GIs on the EUIPO website here.

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New edition of Look-Alike Chart

The MARQUES Unfair Competition Team has published the 2023 edition of the Look-Alike Chart, which includes information on enforcement against look-alikes around the world.

The Chart covers nearly 50 countries from Argentina to USA and includes information on 17 key questions, such as:

  • Can proprietary rights be acquired in the get-up/trade dress of a product?
  • Is protection available for product shape on its own, or only in combination with packaging/get-up?
  • Is protection available after a former IP right has lapsed?
  • What are the requirements to show infringement?
  • Is quality difference relevant?
  • What other factors influence infringement findings?
  • Can unused rights be enforced?
  • What are the average costs of court actions?
  • Are customs and criminal actions available?

The Chart is compiled by members of the Unfair Competition Team and can be downloaded on the Team’s page here (MARQUES log-in required). You can contact members of the Team with any questions.

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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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