2012-05-30: 没有被列入欧盟商标检索报告的可能提出异议的实体名单，是否也有权就该欧盟商标申请提出异议？
打印德国华孙专利律师和律师事务所，2012年5月30日，德国慕尼黑
问：没有被列入欧盟商标检索报告的可能提出异议的实体名单，是否也有权就该欧盟商标申请提出异议？
答：此处所指的检索报告是“Community search report”，即“共同体检索报告”。根据欧盟《共同体商标条例》第207/2009号（“Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark”）第38条，欧盟内部市场协调局会对可能与申请商标发生冲突的在先欧盟商标或在先欧盟商标申请（以及指定欧盟的国际商标）进行检索，在申请人明确要求并额外付费的情况下，成员国的工业产权局也会对可能与申请商标发生冲突的在先各成员国商标或商标申请进行检索。
如果审查没有发现问题或所发现的问题已经被更正、并且检索报告已送达申请人，申请商标就会被公告。在公告后的三个月内，第三方可以基于在先权利向欧盟内部市场协调局提出异议。
有权提出异议的企业或个人分为三类，在欧盟《共同体商标条例》第41条第1款中有规定：
“Within a period of three months following the publicationof a Community trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8:
(a) by the proprietors of earlier trade marks referred to in Article 8(2) as well as licensees authorised by the proprietors of those trade marks, in respect of Article 8(1) and (5);
(b) by the proprietors of trade marks referred to in Article 8(3);
(c) by the proprietors of earlier marks or signs referred to in Article 8(4) and by persons authorised under the relevant national law to exercise these rights.”
因此，即使是没有被列入报告的企业或个人，如果觉得将要注册的商标对他们不利，只要属于上述三类中的至少一类，也有权提出异议。
欧盟《共同体商标条例》第8条内容如下：
Article 8 Relative grounds for refusal
1. Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:
(a) if it is identical with the earlier trade mark and the goods or services for which registration is applied for are identical with the goods or services for which the earlier trade mark is protected;
(b) if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
2. For the purposes of paragraph 1, ‘earlier trade marks’ means:
(a) trade marks of the following kinds with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks:
(i) Community trade marks;
(ii) trade marks registered in a Member State, or, in the case of Belgium, the Netherlands or Luxembourg, at the Benelux Office for Intellectual Property;
(iii) trade marks registered under international arrangements which have effect in a Member State;
(iv) trade marks registered under international arrangements which have effect in the Community;
(b) applications for the trade marks referred to in subparagraph (a), subject to their registration;
(c) trade marks which, on the date of application for registration of the Community trade mark, or, where appropriate, of the priority claimed in respect of the application for registration of the Community trade mark, are well known in a Member State, in the sense in which the words ‘well known’ are used in Article 6bis of the Paris Convention.
3. Upon opposition by the proprietor of the trade mark, a trade mark shall not be registered where an agent or representative of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor's consent, unless the agent or representative justifies his action.
4. Upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for shall not be registered where and to the extent that, pursuant to the Community legislation or the law of the Member State governing that sign:
(a) rights to that sign were acquired prior to the date of application for registration of the Community trade mark, or the date of the priority claimed for the application for registration of the Community trade mark;
(b) that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.
5. Furthermore, upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2, the trade mark applied for shall not be registered where it is identical with, or similar to, the earlier trade mark and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where, in the case of an earlier Community trade mark, the trade mark has a reputation in the Community and, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.
