THE EXTENSIVE POWERS OF OHIM TO SEEK INFORMATION OF ITS OWN MOTION IN ORDER TO ASCERTAIN THE CONTENT, THE CONDITIONS OF APPLICATION AND THE SCOPE OF THE RULES OF NATIONAL LAW RELIED UPON BY THE APPLICANT FOR A DECLARATION OF INVALIDITY
In the judgement given on 27 March, 2014 in Case C-530/12 P Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v National Lottery Commission London, UK, the Court of Justice of the European Union stated at paras 43 and 45 thereof that:
`Where the competent OHIM bodies are called upon to rule, initially, on an application for a declaration of invalidity of a Community mark based on an earlier copyright protected by a rule of national law, their decision may have the effect of depriving the proprietor of the Community trade mark of a right that has been granted to him. The scope of such a decision necessarily implies that the authority which takes it is not limited to the role of mere validation of the national law as submitted by the applicant for a declaration of invalidity.`
` Consequently, it was without making any error of law that the General Court held, in paragraph 20 of the contested judgement, that ‘in circumstances in which OHIM may be called upon to take account, in particular, of the national law of the Member State in which protection is given to the earlier mark on which the application for a declaration of invalidity is based, it must — of its own motion and by whatever means considered appropriate — obtain information about the national law of the Member State concerned, where such information is necessary for the purposes of assessing the applicability of a ground for invalidity relied on before it and, in particular, for the purposes of assessing the accuracy of the facts adduced or the probative value of the documents submitted’.