EU COMMISSION PLANS INCREASE TO EU TRADE MARK FEES by Brian Miller Solicitor

Following a discovery by the EU Commission that OHIM, the body responsible for registering EU trade marks, is making a profit from its fees, the Commission plans to remove the surplus to its own funds.

As part of this review, the Commission intends to reduce the number of classes which are included in the initial one off registration fee from three classes to one. This will effectively increase costs for all businesses (but particularly small ones), who cannot ill afford this increase in costs, unless they simply decide to register an EU trade mark only in one class.

But deciding to take that strategy in order to save costs is not advisable, since if a business or organisation operates in more than one area, it will need to register in more than one class  in order properly to protect its brand. It will therefore have no choice but to pay the extra fees if it wishes to continue to do so.

OHIM fees to register a trade mark are currently €900 for an online application (€1050 otherwise), which includes three classes.  The fee for each addition class is €150 euros.  This means that, in order to sustain an application which includes three classes, the applicant will pay an extra €300 euros, an increase of 33% over the current fee for a trade mark which includes three classes.

There was a mini-hearing before the Legal Affairs Committee of the European Parliament just before the summer break, on 8 July. The issues of fees was hotly debated and member states have unanimously rejected the Commission’s legislative package, on the grounds principally that it overlooks the interests of SMEs, which the Commission hotly contests.

The debate rolls on and time will tell whether SMEs will persuade the Commission that changing from a one-fee-for-three-classes to one-fee-for-one-class approach is only going to increase the coffers of OHIM, which was the main reason for making the change in the first place!

ESTATE PLANNING: Digital Death

In an age of social networking and online media, it is easy to overlook the potential value digital data holds when dealing with the estate of a deceased person.

We all know the importance of estate planning for our investments and physical possessions, but what steps should we be taking to protect the belongings we store online and other intellectual property?

Email

Broadly, you own your personal email and electronic correspondence, which can be left to a beneficiary in a will. However, if a username and password are not specified, a will might be not enough to force some email providers to grant a beneficiary access to your emails.

By way of example, in 2005, Yahoo! refused to release the login and password to the family of a Marine who died in Iraq. The matter went to court and Yahoo! was ordered to release the account details to the family. Gmail and Hotmail will provide a CD copy of emails to a family, provided proof of death and proof of relationship are supplied.

Conversely, you might not actually want anyone to be able to access your email account on death. If this is the case and you want your executors to close your online accounts after you die, you should explicitly stipulate your login details and wishes in a letter of wishes associated with your will.

Facebook and Twitter

Facebook and Twitter will provide login details, regardless of what your will specifies, as the Terms and Conditions of both stipulate that a user’s account is the property of the company. On death, Twitter will delete your account after receiving the death certificate from a family member, even if technically this is the prerogative of your executors.

When a member of Facebook dies, their profile can be ‘memorialised’, meaning only the user’s friends are allowed to see and comment on the deceased’s page. Facebook will remove an account if requested by the deceased’s family after they provide a death certificate, although again technically this is the prerogative of your executors.

Patents

A patent is a right that allows inventors to prevent another from making, selling, or using another invention that is similar in nature. Patents may be used to protect inventions, machines, devices and processes.

In the case of a deceased owner of a patent, a certified copy of the probate or letters of administration is required. The executor named should then complete an assignment as though he were the owner but where the executor and beneficiary are the same person or the named beneficiary is to be entered as the new owner, a copy of the will or a signed statement of “assent” by the executor may be required.

Trademarks

A trademark is a legal means of identification to distinguish a trader and his or her products from those of other traders.  It can be a word, letters, a logo, a shape, numerals, a signature, and even sounds and smells, or a combination of these.

Trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a trademark is 10 years, with 10-year renewal terms.

Designated trademarks and brands are the property of their respective owners. If an owner of a trademark passes away, form TM16 must be filed with the Intellectual Property Office (IPO) to record the change in the register of trade marks. As with a patent, the legal term for a transfer of ownership is an 'assignment’.

Intestacy

If an artist is domiciled in the UK and they have not made a will, then all of the assets which are in their sole name, including all real and personal property, money, artwork, copyright and ARRs, will pass to their next of kin in accordance with the rules of intestacy. These rules dictate how and to whom an estate will be distributed and as such this may not be in accordance with the wishes of the artist. In addition, unexpected inheritance tax charges can follow on intestacy, when some assets pass in trust to children and not just a surviving spouse or civil partner.

Estate Planning

A properly drafted will and effective estate planning are essential if you want to ensure that your estate passes to the people you choose it to go to in the most efficient way. 

At Stone King we can advise you on the best way to make provision for your family and loved ones, taking all your circumstances into account. Our specialist wills and estate solicitors can also act as your professional executors and trustees, either working alone or alongside others.

If you would like to know more, Brian Miller can be contacted at Stone King, Solicitors or by calling 0207 324 1523.

Disclaimer: This article may not be reproduced without the prior written permission of the author. This article reflects the current law and practice. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.