Joff Wild

The Financial Times reported on Saturday that trademark fees in Europe look set to fall after the European Commision stated that it will be pushing through legislation to make it happen by the end of this year. Here is the story:

A cut in European Union trademark fees could finally be in sight after Brussels said it planned legal changes to tackle a mounting surplus of funds at the EU trademark office this year.

Charlie McCreevy, the internal market commissioner, told a meeting of industry ministers in Brussels that he planned a legislative proposal before the end of the year.

Greater-than-expected popularity of the "community trademark" - an intellectual property right covering the EU - has led to a build-up of more than €300m ($467m, £236m) in spare funds.

The trademark office - known as the Office of Harmonisation for the Internal Market (OHIM) - wants to slash its fees to prevent any further build-up of cash, and to return at least some of the current surplus to trademark applicants.

But these plans have run into opposition from some of the 27 member states, which fear that their domestic trademark offices will lose business as a result.

The European Commission pushed through one cut in the OHIM's fees in 2005 and, in principle, the need for another cut was accepted a year ago. But, since then, the necessary formal proposals have not materialised.

The issue was raised by Portugal at Competitiveness Council meetings this week, with Lisbon's officials calling for a 30 per cent cut in the €1,600 cost of a community trademark. In response, the commissioner is understood to have assured ministers that the matter will be dealt with this year.

Funnily enough, national patent offices look like being one of the major remaining obstacles to the creation of a Community patent. At the same European Council meeting referred to in the FT’s trademark story, it looks like European ministers decided that if there are to be any major breakthroughs with regard to a Community patent and an EU-wide patent litigation system, these will not now happen under the Slovenian presidency. Instead, it will be down to the French to force the pace.

While translations officially remain the major obstacle, it is also the case that a Community patent will mean significantly reduced income for most national patent offices in Europe as they will no longer receive renewal fees in the way that they do currently. So, although a Community patent may be what European industry wants and maybe what many of the EU member states want, individual countries have it in their power to hold things up or to derail progress altogether. In off the record conversations, Austria seems to get a lot of mentions in this regard, as does Spain, as does Finland. Whether this is fair or not I couldn’t say: one of the problems with these negotiations is that they take place behind closed doors and so no-one who is not involved can be certain as to what is happening.

By common consent, the Slovenians have done an excellent job keeping things moving forward. However, like the Portuguese before them, the Slovenians lack the political muscle to bang heads together. The French do not. But if the French cannot do it, you have to wonder who will, given that the Germans have just had their turn in charge of the Council of Ministers – indeed, they got everything going again in the first place. Basically, it all depends on whether the top level politicians in the EU’s major countries insist on solutions. If they do, it will be a very brave smaller country that says no. On the other hand, if the major players decide that, after all, there are other priorities, we will keep the status quo. And Europe will, yet again, end up making itself look ridiculous: declaring it wants to be the world’s leading knowledge-based economy, but incapable of putting in place a patent system that will help enable that.