Article 64
Examination of the application
- On the examination of the application for revocation of rights or for a declaration of
invalidity, the Office shall invite the parties, as often as necessary, to file observations,
within a period to be fixed by the Office, on communications from the other parties or
issued by itself.
- If the proprietor of the EU trade mark so requests, the proprietor of an earlier EU trade
mark, being a party to the invalidity proceedings, shall furnish proof that, during the period
of five years preceding the date of the application for a declaration of invalidity, the earlier
EU trade mark has been put to genuine use in the Union in connection with the goods or
services in respect of which it is registered and which the proprietor of that earlier trade
mark cites as justification for his application, or that there are proper reasons for non-use,
provided that the earlier EU trade mark has at that date been registered for not less than
five years. If, at the date on which the EU trade mark application was filed or at the priority
date of the EU trade mark application, the earlier EU trade mark had been registered for
not less than five years, the proprietor of the earlier EU trade mark shall furnish proof that,
in addition, the conditions set out in Article 47(2) were satisfied at that date. In the absence
of proof to this effect, the application for a declaration of invalidity shall be rejected. If the
earlier EU trade mark has been used only in relation to part of the goods or services for
which it is registered, it shall, for the purpose of the examination of the application for a
declaration of invalidity, be deemed to be registered in respect of that part of the goods or
services only.
- Paragraph 2 shall apply to earlier national trade marks referred to in Article 8(2)(a), by
substituting use in the Member State in which the earlier national trade mark is protected
for use in the Union.
- The Office may, if it thinks fit, invite the parties to make a friendly settlement.
- If the examination of the application for revocation of rights or for a declaration of
invalidity reveals that the trade mark should not have been registered in respect of some or
all of the goods or services for which it is registered, the rights of the proprietor of
the EU trade mark shall be revoked or it shall be declared invalid in respect of those goods
or services. Otherwise the application for revocation of rights or for a declaration of
invalidity shall be rejected.
- A record of the Office's decision on the application for revocation of rights or for a
declaration of invalidity shall be entered in the Register once it has become final.