Unión Europea
Observancia de los derechos de propiedad intelectual
2. It is the understanding of the European Communities and their Member States that a number of decisions by the Registrar of Trade Marks are currently outstanding for more than a year since they were argued before the Registrar. How does this comply with Article 41.3 of the TRIPS Agreement?
There is, at the present time, a small backlog of decisions by the Registrar of Trade Marks, namely seven outstanding, only one of which has been outstanding for a substantial period of time. This is due to a shortage of staff, and an unexpected escalation in the number of trademark cases filed, giving rise to a considerable increase in the number of trademark hearings before the Registrar of Trade Marks. However, it should be borne in mind that the Trade Marks Act provides (e.g. in Sections 24(1), 26 and 27) that the applicant has an option to elect whether to bring the proceedings before the Registrar, or before the Court. This means that, in many cases, the delay currently experienced in regard to matters being heard by the Registrar, can in fact be avoided by the applicant by bringing the proceedings before the Court (i.e. the High Court). In terms of Section 59 of the Trade Marks Act, where proceedings in terms of certain specified sections are pending before the Registrar, the Registrar may in his discretion refer the proceedings to the Court, he must refer to the proceedings to the Court on written application of all the parties concerned. This provision creates a mechanism whereby parties who require expeditious decisions could approach the High Court rather than the Registrar.