Following yesterday afternoon's Workshop Sessions and the Gala Dinner, it was with bleary eyes and aching heads that a few early risers braved the MARQUES Annual General Meeting at the impossibly untimely hour of 9.30am. Fortunately, a combination of efficient planning, confident chairmanship and deeply-held trust on the part of the membership meant that the duration of the meeting was no longer than three and a half minutes, inclusive of voting, seconding and applause.

Right: after the Gala Dinner ... Noordwijk will never be the same again

Today's 9.45am session, chaired by Carles Prat, reviewed latest developments within OHIM and the European Courts of Justice. First to speak was Vincent O'Reilly (OHIM), who reminded the audience of three things: (i) the Court of First Instance does not order the Office to do things, (ii) OHIM will in general support the Boards of Appeal in any appeal to the CFI, which means that its approach to CTM issues is fairly consistent and (iii) OHIM is particularly concerned with issues involving procedure, rather than just substantive law. Why is this last issue so important? Around 80% of the decisions in ex parte decisions are upheld, and around 67% of decisions in inter partes matters. In most cases where decisions are not upheld, it is becaise procedural guidelines have not been followed.

Vincent then reviewed a number of recent cases, examining OHIM's role regarding appeals concerning rights of representation, discretion to determine whether deadlines have been met or not, the highly limited ability of the CFI to conduct a reassessment of the facts unless there has been an improper or distorted assessment of them, and the inability of the CFI to annul or alter a ruling in the light of events that transpired subsequent to that ruling.

Among decisions discussed by Vincent were the recent and controversial maple leaf decision (see Class 46 here), which OHIM is now appealing to the European Court of Justice. "This is a surprising case", he said. "We can't see that there is a distinction between trade marks for goods and services". He also reviewed the Grand Board of Appeal decision in R 1313/2006-G (CARDIMA/CARDIVA), a long decision on oppositions that deserves careful reading.

Hugues Derème (Deputy DG, Benelux IP Office) then reviewed the impact of Community trade marks on Benelux office practice, after first praising his office's influence and dynamism. To say that the coming into force of the CTM has affected Benelux office practice is a euphemism; while the number of applications for Benelux from within the Benelux has remained stable, the number of filings from outside has fallen a great deal. But while there may be fewer applications, the office is now working harder. First, while OHIM decisions are not binding on national offices, the BOIP strives to familiarise itself with those decisions. Secondly, regarding oppositions, some 40% of local oppositions are based on earlier CTMs -- that's about 40 extra oppositions a months. Thirdly, knowledge of the voluminous case law of the ECJ and CFI is now essential, and BOIP defends itself in appeals under local law which require knowledge of CTM case law. Fourthly, BOIP has an increased information-providing and communication role with regard to inquiries from non-experts.

How does a small office like BOIP survive? Hugues explained that it has to do so through providing quality, speed and new imaginative products -- plus efficient marketing and promotion of its own services.

Right: applicants' cash -- too much is taken for CTM purposes, but do national offices and BOIP deserve some of it?

The 24 hour trade mark is its best service. Hugues next summarised the differences between OHIM and BOIP administrative practices, highlighting their consequences regarding verification of classification, publication of marks, periods within which oppositions may be filed, and so on. He concluded with comments on the discusions taking place this week regarding OHIM fees and the relation between CTMs and national marks. The market-stifling effect of lenient 'genuine use' rules, which preserve a CTM's validity throughout the EU even if it is used only in, say, Luxembourg, came in for particularly sharp analysis. As to fees, he argued that SMEs, the main applicants for Benelux marks, have to subsidise the cost of BOIP's extra work in result of its coexistence with OHIM. Cooperation Agreements are received but do not cover the full cost.

An annual fixture of the MARQUES conference is the presentation of the Lewis Gaze Memorial Prize for the best essay on trade mark law by a law student from the country hosting the conference. This year's winner of the first prize is Catherijn Mulder (left, receiving her prize from Vincent O'Reilly), for her essay on post-Montex v Diesel transit of trade mark-protected goods (this essay will shortly be posted on the MARQUES website).