4/15/2023 0 Comments Actio popularis![]() ![]() This would be the case if any natural or legal person could bring an action against substantial amendments to specifications.Īnd if “non-locals” were excluded from a right of appeal against changes to the specification, this would also offer the possibility of abuse. 1151/2012 that a Collective action – “actio popularis” – would have to be made possible. 49(4), second subparagraph, of Regulation (EU) No. ![]() ![]() BGH wants to exclude “actio popularis”Īccording to the BGH, however, it does not follow from Art. A corresponding action would consequently be considered admissible even if the national procedural rules do not provide for this in such a case (see ECJ, Oleificio Borelli v Commission 1992 GRUR Int. This requires an interpretation by the ECJ, the BGH ruled, because Union law sees judicial reviewability as fundamentally necessary also in relation to an act such as an application for amendment of the specification, which is a necessary stage in the procedure for the adoption of a Union measure. The prerequisite for this is always a “legitimate interest”. Accordingly, any natural or legal person has the right to opposition proceedings against amendments to the specification which are not minor. In German trade mark law, the requirements of Union law on the participation of persons with a legitimate interest in the procedure for the registration of protected geographical indications as well as in the procedure on applications for non-minor amendments to their specifications are implemented in the Trade Mark Act by the provisions of Sections 130(4), second sentence, and 133, second sentence, in conjunction with Section 132(1) of the Trade Mark Act. 6(2) of Delegated Regulation (EU) No 664/2014) opposition proceedings then do not take place (September 2019, C-785/18)). 53(2), second subparagraph, Regulation No 1151/2012 and Art. If the proposed amendments are minor, a simplified procedure is carried out in the member state and at Union level (Art. In principle, amendments to specifications are possible, but opposition procedures can also be conducted against them. Can any natural or legal person also rely on it? Or only economic operators who produce comparable products or foodstuffs to those for which a protected geographical indication is registered? And: Are “non-locals” excluded from claiming a legitimate interest from the outset? Appeal against changes to the specification Appeal against amendment of the specification: Who has legitimate interest?Īccording to the BGH, the success of the appeal depends on how the “legitimate interest” in Article 49(3), first subparagraph, and (4), second subparagraph, in conjunction with Article 53(2), first subparagraph, of Regulation (EU) No 1151/2012 is to be interpreted. ![]() Thus, the case came before the Federal Court of Justice (BGH), which submitted the term ” legitimate interest ” to the ECJ for interpretation. The applicant Hengstenberg filed an opposition against this, but failed so far, most recently before the Federal Patent Court however, an appeal on points of law was allowed (BPatG 2018, 30 W(pat) 36/15). In February 2012, the association of “Spreewälder Gurken” applied for an amendment to the specification at the German Patent and Trade Mark Office. The designation ‘Spreewälder Gurken’ has been registered as a protected geographical indication for unprocessed and processed vegetables in the Register of protected designations of origin and protected geographical indications since 19 March 1999. In a nutshell, the key question was: Who has a right of action and opposition proceedings against changes to the specification such as a geographical protected indication? The facts 49(3), first subparagraph, and (4), second subparagraph) in relation to quality schemes for agricultural products and foodstuffs. 53(2), first subparagraph, in conjunction with Art. The legal issue was the interpretation of Regulation (EU) No 1151/2012 (Art. V., Germany) and Hengstenberg (Germany) faced off before the highest European court (ECJ) in the German “gherkin dispute”. The interest group of the German “Spreewälder Gurken” (Spreewaldverein e. Who has a legitimate interest for opposition proceedings within the meaning of the relevant EU Regulation? Is a popular action possible? The ECJ ruled today in the German “gherkin dispute” on opposition proceedings against changes to the specification such as a geographical protected indication. ![]()
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