AG says that national emblems are protected under CTM Regulation for services

In C-202/08 & C208/08, AG Ruiz-Jarabo has given his opinion that the CFI's decision should be reversed. The CFI had held that Art.7(1)(h) of the CTM Regulation which protections national symbols and other signs protected under Article 6ter of the Paris Convention did not apply to applications for services. The main reason for the CFI reaching this conclusion is that Art.6ter appears on its face only to apply to trade marks for goods and not service marks. Thus, service marks would appear not to be protected under Art.6ter. Indeed, Art6sexies refers to "service marks" and does not impose an obligation on Member States to provide for their registration. 

Clearly, the failure to extend protection of national flags and symbols to service marks makes little sense in the modern world. AG Ruiz-Jarabo clearly felt that such was an undesirable outcome. Accordingly, he concluded that Art.7(1)(h) was not intended to only protect marks under Art.6ter. The reasoning of the Advocate-General is somewhat unconvincing and certainly, to the author's mind, less convincing than the CFI's judgment which made the sound point that the legislators of the CTM Regulation could have extended protection beyond Art.6ter but did not. Indeed, Art.7(1)(i) refers to trade marks other than those covered by Art.6ter and thus the legislators appear to have a clear distinction in mind between Art.6ter marks and other national signs falling outside Art.6ter.

Ultimately, this is a case where the law appears clear but makes little sense. We await with interest the ECJ's judgment.