Formal deficiency at the OEPM: deadline and how to remedy it

What triggers a formal deficiency

• Filing-date requirements (art. 8.1 RLM): an indication that registration is sought, information identifying the applicant, a representation of the mark and a list of goods or services.
• Other formal requirements (art. 9.1 RLM): full particulars of the application and, where applicable, of the priority claimed. A priority document in another language must be accompanied by a Spanish translation.
• Payment of the fee (art. 16.1.b LM).
• Entitlement of the applicant (art. 10 RLM).

Why the filing date matters

If the defect affects a filing-date requirement, the date granted will be the day on which it is remedied (art. 16.3 LM). Any mark filed in the meantime may therefore become earlier than yours, which is why this notice should be dealt with at once. Where the fee has not been paid in full, the procedure continues for the classes fully paid, in the order of the application (art. 16.4 LM).

How to respond

The response must correct the specific defect, or explain why it does not exist. You may also withdraw, limit, amend or divide the application at this stage (art. 9.2 RLM). Amendments are narrow: only the applicant’s name and address, errors of wording or transcription and obvious mistakes can be corrected, provided that this does not substantially affect the mark or extend or change the list of goods or services (art. 23.2 LM).

I work on fixed rates by process: each procedure has a closed fee, which you know before instructing me, with no hourly billing. Official fees, where they apply, are separate.

If the deadline has passed

Article 25 LM provides for re-establishment of rights for those who, despite all due care required by the circumstances, could not meet a time limit. It is exceptional: it must be requested in writing, reasoned, paid for and, in any event, filed within one year of the missed deadline. Simply overlooking the date rarely qualifies. Often the practical alternative is a new application, after checking whether anyone has filed a conflicting sign in the meantime.