Who?
The motion for annulment can be instigated by any person (absolute grounds) or the prior right’s owner (relative grounds).
Why?
At the time of the application the basic conditions were not met – meaning both absolute & relative grounds as well as bad faith* can be the basis for annulment.
Thus, if the annulment is approved, legally, the affected trade mark (in full or partially) will be considered as never to have existed.
How?
The annulment motion is a written document.
The owner of the prior right has to prove use of their trade mark** otherwise no annulment will be possible!
When?
If the owner of the prior right did nothing for 5 consecutive years of later right’s use – no annulment procedure is available, except in cases of bad faith.
What is next?
The motion is sent to the owner of the later right by the IPO’s Division for cancellations, giving them a 2-month period to reply (without the possibility of extension of time). Then the IPO will look at the arguments and come to their Decision. They can arrange for hearings during this process, but no new proof can be presented at this point in the process.
The Decision can be to allow the annulment as a whole or in part or to reject the motion. However, it can also be to transfer the ownership if the trade mark has been registered in the name of the unauthorized representative.
It is possible to appeal this Decision before the IPO’s Appeals Board (within 45 days from the date of Decision receipt).
*Additionally, since the law changes of 2025 trade mark applications filed in bad faith are now clearly prohibited and can also be opposed!
**Use means on the AL market, for all or some goods the TM has been registered for. Other usual rules apply (proof of use needed only if more than 5 years has gone after the registration and there are no justifiable reasons for non-use)
