The Evolution and Termination of the 1892 Switzerland-Germany Convention: Implications for Trademark Rights
The Convention between Switzerland and Germany concerning collective patent, design, and trademark protection, dating back to April 13, 1892, held significant transnational relevance for both countries. However, recent developments have reshaped its impact on trademark rights, leading to termination and consequential shifts in the protection landscape.
Trademark Rights and Non-Use Considerations
In both Switzerland and Germany, trademark rights face scrutiny if not utilized consecutively for five times before assertion. Failure to meet this criterion renders the trademark vulnerable, except within the expiration of opposition proceedings or filing for cancellation after the unused period.
ECJ Rulings: Impact on Convention Provisions
The 1892 Convention encountered substantial setbacks due to European Court of Justice (ECJ) rulings. The ECJ’s 2013 decision regarding the Passaia drink trademark clarified that reliance on the Convention to safeguard rights within Germany based on Swiss use was untenable. Subsequent rulings further highlighted conflicts between the Convention and EU law, particularly concerning public trademarks.
Termination and Its Ramifications
The final blow came with Germany’s termination of the 1892 Convention in April 2021, subsequently accepted by Switzerland. Effective May 31, 2022, the Convention ceased to exist. Despite its expiration, it retains applicability to objections and cancellation procedures initiated before May 31, 2022, regarding non-use during the relevant period.
Implications and Shifts in Trademark Protection
The termination fundamentally alters the interdependence of trademark use between Switzerland and Germany. Trademark usage now necessitates validation within the country of registration, eliminating reliance on cross-border use. Hence, ensuring evidence of genuine domestic use has become paramount for trademark safeguarding.
In conclusion, the demise of the 1892 Convention signals a paradigm shift in the enforcement of trademark rights. The requirement for localized usage emphasizes the need for meticulous proof of domestic utilization, reshaping strategies for trademark defense and enforcement in both Switzerland and Germany.
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