LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
Revocation and Cancellation Before the Courts Invalidity on absolute grounds may be request - ed by any interested party, including the Public Prosecutor. Invalidity on relative grounds may be invoked by any interested party where the owner of the ear - lier trade mark or the person entitled to exercise the rights related to PDO and PGI is a party to the proceedings. Any interested party may invoke the revocation of a trade mark. Revocation and Cancellation Before the BOIP Invalidity or revocation based on absolute grounds may be initiated by any natural or legal person and any group or body set up for the purpose of representing the interests of its mem - bers (such as consumers or traders), as long as it has the capacity to sue in its own name and to be sued. Depending on the case, invalidity or revocation based on relative grounds may be initiated by: • the owners of earlier trade marks and the licensees authorised by those owners; • the owners of a trade mark registered by an agent or representative in its own name and without authorisation; or • the parties authorised to defend PDO and PGI and to exercise the rights in relation to the defence of such identifiers. 5.4 Opposition or Revocation/ Cancellation Procedure The opposition procedure is as follows. • Checking the minimal legal requirements: the BOIP checks the accuracy and completeness
• after its registration, the trade mark has become the common name in the trade of a good or service in respect of which it is registered, because of the owner’s activity or inactivity; • it may mislead the public as to the nature, quality or geographical origin of such goods or services by reason of the use made of the trade mark; or • the trade mark has not been put into genuine use in the Benelux territory within five years following the registration date of the trade mark, in connection with the goods or ser - vices in respect of which it is registered, or if such use has been suspended for a continu - ous five-year period. 5.3 Ability to File an Opposition or Revocation/Cancellation Opposition The owner (or a licensee authorised to act as such and whose licence is recorded on the BOIP register) of a trade mark valid in the Benelux ter - ritory can oppose an application for a Benelux trade mark. This includes a Benelux trade mark, an EU trade mark, an international trade mark protected in the Benelux or in the EU, or a well- known trade mark that has a reputation in the Benelux. Holders of rights over PDO and PGI may also file an opposition under certain conditions. The opponent is not obliged to be represented but a correspondence address within the EEA must be provided if the opponent’s domicile or its corporate seat is not located in the EEA. The BOIP fees for an opposition start at EUR1,045. Surcharges may apply if more than three rights are invoked (EUR105 per right after the third right).
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