The Trade Marks (Relative Grounds) Order 2007

Section 5 of the Trade Marks Act 1994 (“the Act”) (relative grounds for refusal) provides that a trade mark shall not be registered if it is identical with or similar to an earlier trade mark (defined in section 6) or earlier right. Under section 37 of the Act the registrar is required to examine whether an application for registration of a trade mark satisfies the requirements of the Act and for that purpose, is required to carry out a search of earlier trade marks. If it appears to the registrar that these requirements are not met he must inform the applicant and give him the opportunity to make representations or amend the application. However, if it appears that they are met, he must accept the application and publish it. Following publication, any person may, within a prescribed period, oppose the registration (section 38).

Section 8 of the Act confers power on the Secretary of State to make an Order in these terms following the expiry of a period of ten years beginning with the date on which applications for Community trade marks (“CTMs”) may first be filed in pursuance of the Community Trade Mark Regulation (Council Regulation 40/94/EEC). Applications for CTMs were first able to be filed on 1 April 1996 and so the ten year period has now elapsed. This Order provides that the registrar shall no longer refuse to register a trade mark on relative grounds unless the proprietor of the earlier trade mark or other earlier right objects on any such ground in opposition proceedings. It also makes consequential provision with respect to the carrying out by the registrar of searches of earlier trade marks and as to the persons by whom an application for a declaration of invalidity may be made on the grounds specified in section 47(2) of the Act.

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