The Madrid system: International filing for the registration of trademarks

There was a need felt to establish a system that would link the international registrations of trademarks. The international registration draft which was prepared in the Paris revision conference of Rome in 1886 was placed before the next round which was scheduled at Madrid. The international Trademark Draft which was placed at the Madrid Conference in 1890 was signed and adopted by nine countries in 1891. The purpose of the Madrid Agreement Concerning the International Registration of Marks is to simplify the international registration process of Trade Marks. This pact enables a trademark owner, in any of the contracting countries, to secure trademark protection by filing an application for international registration in the original country’s trademark court. The international application is received by the World Intellectual Property.

An application for international registration (international application) may be filed only by a natural person or legal entity having a connection – through establishment, domicile, or nationality – with a Contracting Party to the Agreement or the Protocol. A mark may be the subject of an international application only if it has already been registered with the trademark office of the Contracting Party with which the applicant has the necessary connections (referred to as the office of origin). However, where all the designations are effected under the Protocol (see below), the international application may be based simply on an application for registration filed with the office of origin. An international application must be presented to the International Bureau of WIPO through the intermediary of the office of origin.

An application for international registration must designate one or more Contracting Parties in which protection is sought. Further designations can be effected subsequently. A Contracting Party may be designated only if it is a party to the same treaty as the Contracting Party whose office is the office of origin. The latter cannot itself be designated in the international application. The designation of a given Contracting Party is made either under the Agreement or the Protocol, depending on which treaty is common to the Contracting Parties concerned. If both Contracting Parties are party to the Agreement and the Protocol, the designation will be governed by the Protocol. International applications can be filed in English, French, or Spanish, irrespective of which treaty or treaties govern the application unless the office of origin restricts that choice to one or two of these languages. The filing of an international application is subject to the payment of a basic fee (which is reduced to 10 percent of the prescribed amount for international applications filed by applicants whose country of origin is an LDC, in accordance with the list established by the United Nations), a supplementary fee for each class of goods and/or services beyond the first three classes, and a complimentary fee for each Contracting Party designated. However, a Contracting Party to the Protocol may declare that, when it is designated under the Protocol, the complementary fee is replaced by an individual fee, whose amount is determined by the Contracting Party concerned but may not be higher than the amount that would be payable for the registration of a mark, at the national level, with its office.
Organization (WIPO) issues an international registration and transmits it to the designated countries for examination. The United States did not adhere to the Madrid Agreement partially because of the “central attack” provision, which provides that if the home country registration is canceled (or otherwise invalidated), registrations in all designated foreign countries will fall with it. The Protocol Relating to the Madrid Agreement (Madrid Protocol), adopted in 1989, has modified the most objectionable features of the original agreement. The protocol now allows a TM owner, whose registration has been canceled in the country of origin, to retain her international application and, thus, to file a registration application in the designated countries, as if it had been filed on the date of the international registration.

The Madrid system offers several advantages for trademark owners. Instead of filing a separate national application in each country of interest, in several different languages, in accordance with different national or regional procedural rules and regulations and paying several different (and often higher) fees, an international registration may be obtained by simply filing one application with the International Bureau (through the office of the home country), in one language (English, French or Spanish) and paying one set of fees.
Similar advantages exist for maintaining and renewing a registration. Likewise, if the international registration is assigned to a third party, or is otherwise changed, such as a change in name and/or address, this may be recorded with effect for all designated Contracting Parties by means of a single procedural step.
The Madrid Agreement and Protocol are open to any State party to the Paris Convention for the Protection of Industrial Property (1883). The two treaties are parallel and independent, and States may adhere to either or both of them. In addition, an intergovernmental organization that maintains its own office for the registration of marks may become a party to the Protocol. Instruments of ratification or accession must be deposited with the Director-General of WIPO.

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