The Modern Constabulary Of Patents; Ohim Boa Liberty Again

suggested that Boards of Appeal at OHIM, the business office that grants too administers the Community merchandise mark, were non exclusively gratuitous too independent. This suggestion, having received both hostile and cynical responses, instantly enjoys the back upwards of Dave Landau (UK Patent Office) who writes:

"The respond re the seat of the BoAs too their "independence" has already been given past times the CFI inward Procter & Gamble v Office for Harmonisation inward the Internal Market (Trade Marks too Designs) (OHIM) [2003] ETMR 43:

"19 The Court notes at the outset that the Boards of Appeal are composed of members whose independence is ensured past times the fashion of appointment, past times the duration of their term of business office too equally good past times the rules governing the practice of their functions. Furthermore, for certain provisions of Regulation 40/94 governing the physical care for earlier the Boards of Appeal guarantee, inter alia, the parties' rights of defence.

20 However, the Boards of Appeal cast component division of the Office, which is the potency responsible for registering merchandise marks nether the atmospheric condition seat downwardly inward Regulation 40/94, too equally good contribute, inside the limits seat past times that regulation, to the completion of the internal marketplace (Case T-163/98 Procter & Gamble v OHIM (BABY-DRY) [1999] E.C.R. II-2383, paras 36 too 37).

21 In that regard, it follows from BABY-DRY, paras 38 to 43, that in that location is continuity inward damage of their functions betwixt the diverse departments of the Office too that the Boards of Appeal enjoy, inward particular, the same powers inward determining an appeal equally the examiner. Thus, piece the Boards of Appeal taste a broad compass of independence inward carrying out their duties, they establish a subdivision of the Office responsible for controlling, nether the atmospheric condition too inside the limits seat downwardly inward Regulation 40/94, the activities of the other departments of the direction to which they belong.

22 Since a Board of Appeal enjoys, inward particular, the same powers equally the examiner, where it exercises them it acts equally the direction of the Office. An activeness earlier the Board of Appeal hence forms component division of the administrative registration procedure, next an "interlocutory revision" past times the "first department" to behavior out an examination, pursuant to Art.60 of Regulation 40/94.

23 In the low-cal of the foregoing, the Boards of Appeal cannot hold out classified equally 'tribunals'. Consequently, the applicant cannot properly rely on a correct to a fair 'hearing' earlier the Boards of Appeal of the Office".