On 26 November 2013, the President of OHIM issued a decision whereby, from 2 December 2013, decisions concerning refusals of Community Trade Mark (CTM) applications based on absolute grounds such as descriptiveness or lack of distinctiveness will be made publicly available. This will be done through a case- law database that is yet to be launched on OHIM's website.
To this date, applicants for CTMs have been able to rely on the files – including refusals – remaining confidential as long as the CTM applications were not published. Publication triggers the entire examination file becoming publicly available – in particular through online access to files. Publication only occurs if OHIM accepts the application as registrable (at least in part). Examination files of marks that were refused entirely therefore have always remained confidential. In addition, applicants that preferred for their applications to go on record as "withdrawn" rather than "refused" could achieve this by withdrawing the applications following the refusal letter, during the appeal period.
This has been different only for International Registrations designating the EU. Such designations are re-published by OHIM before it starts the examination process. Therefore, the examination files for IRs have always been publicly available online, because technically, examination follows publication.
There will be greater transparency going forward, and also for direct CTM filings. While the examination file as a whole will not be made publicly available in the event of a total refusal, OHIM has now decided to publish decisions with which CTMs are refused registration. The aim is to provide a complete, transparent and intelligible case-law database, to serve also as basis for greater convergence and harmonization of practices within the EU.
The decision is available at OHIM's newly launched website following this link: https://oami.europa.eu/ohimportal/en/decisions-and- communications-of-the-president.