If you are struggling with those pesky class headings again and tying yourselves in knots over Article 28(8) declarations, here's something to cheer you up -- or at least to make your life a little less difficult. It's a notice posted on the EUIPO website yesterday with the helpful descriptive title "Article 28(8) declarations: examples of terms not clearly covered by the literal meaning of the respective class headings". 

Article 28(8) EUTMR, amended by Regulation 2015/2424 amending the Community trade mark regulation, allows for a transitional period of six months during which proprietors of EUTMs applied for before 22 June 2012 and registered in respect of the entire heading of a Nice class may declare that their intention on the date of filing had been to seek protection in respect of goods and services beyond those covered by the literal meaning of that heading.

Following feedback from its user community, the Office has prepared a non-exhaustive list containing examples of terms considered to be not clearly covered by the literal meaning of the respective class headings.

The list is purely for the guidance of trade mark owners wishing to submit declarations for the purposes of Article 28(8) EUTMR. The list is available here

Under Article 8 of Communication 1/2016 of the Executive Director concerning the implementation of Article 28(8) EUTMR, the Office will not object to the inclusion of terms not clearly covered by the literal meaning of the class headings in the specification.

There may be other terms for which there is reasonable doubt as to whether or not they are covered by the literal meaning of the class heading.

The acceptance of declarations for terms not clearly covered by the literal meaning is without prejudice to Office practice in the comparison of goods and services in future opposition or cancellation proceedings.

Applicants are reminded of the limitations of the effects of the declaration, contained in Article 28(8) second paragraph, last sentence and 28(9) EUTMR).