Q&A IX – On observations

December 15, 2021 at 1:15 pm

Each month we answer 3-5 questions our clients most often have and share it in our Q&A series.

Q1: In which situations are observations/opinions filed?

Local laws allow for filing of observation/opinion based on absolute grounds.

In reality, most of our local IPOs, with the exception of the Serbian, rarely even bother with examination of the absolute grounds – unless it is a national emblem or a morality issue (which itself rarely comes up), leaving space for 3rd parties to file these texts.

Only in Serbia and Slovenia the basis for filing an observation is broader, also including – ‘signs that are not distinctive and signs that cannot be trade marks by law, as they cannot be graphically represented’.

Q2: Who can file one and is there a time limit?

Most jurisdictions allow just about anyone to file an opinion, Serbia and Bosnia being the only ones narrowing it down to ‘interested party’.

Time limits start from the publication date and are 90 days or 3 months long.

Some countries such as Serbia and Slovenia do not mention a time limit at all, but it is always best to adhere to the opposition rules – the observation’s goal is to have impact on registration of an application, so it needs to arrive within the time the decision on registration is being made.

In Serbia and in Montenegro, it is the IPO itself that will review the observation and decide on its own how to proceed, without any legal obligation to send the observation to the applicant.

In other jurisdictions the observation is forwarded to the applicant.

Q3: What is the process like?

Filing an opinion or observation does not make one a party in the process – so they would not be notified of the IPO’s Decision or have the right to an appeal.

The local IPO will very often (KS, HR, BA, SI) send this opinion to the applicant and let them have time to reply, but the reply and subsequent Decision will be addressed and handled by the IPO, and the side that initiated the process by filing of the opinion, will not be notified.

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