The accession of the United States and the European Union to the Madrid Protocol, on 2 November 2003 and 1 October 2004 respectively, was one of the two major innovations in international trademark law. With the inclusion of these jurisdictions in the protocol, most major commercial areas have joined the Madrid system. In the run-up to the establishment of a multi-judicial (or at least pan-European) Community brand, the relevance of the Madrid system has been tested. Pressure on WIPO to maintain its relevance and strengthens the agreement by increasing the number of members, possibly through amendments. This culminated in the introduction of the Madrid Protocol, which stated that a Community trademark could be a « foundation registration » or « original registration », on which an international registration could then be made. This mechanism is called « interconnection determination. » The protocol was signed as a result of significant WIPO lobbying efforts by many countries, including most of the current members of the Madrid Agreement, and by some European Union member countries, but which were not members of the Madrid Agreement. The protocol came into force on December 1, 1995 and came into force on April 1, 1996. Madrid`s international trademark registration system consists of two agreements. The Madrid Agreement of 1891 on the International Registration of Trademarks (`the Agreement`) and the 1989 Madrid Protocol (`protocol`) came into force on 1 April 1996. The agreement and the protocol are guarantees, but independent of each other. (The unusual name of « protocol » implies that both agreements have the same structure, so that the sections – with the same number – contain the same points.) The common regulations apply to both all international notifications filed under the Madrid Agreement and the Protocol. It allows the International Office of the World Intellectual Organization to monitor cases whose applications have been filed on the basis of both agreements.
For example, it is possible, under the protocol, to obtain an international registration on the basis of a pending trademark application, so that a trademark holder can, simultaneously or immediately after, file an application in a Member State, effectively apply for an international registration. In comparison, the agreement requires that the trademark holder already have an existing registration in a member jurisdiction, which can often take many months and sometimes years. Moreover, the agreement does not allow for the « conversion » of international records that have been « centrally attacked ». In the United States, the proposal got bogged down because of a trademark dispute between two companies that contributed to some members of Congress during the election campaign, followed by a redeployment of the Senate due to elections followed by the departure of a Republican senator.  The treaty was eventually ratified by George W. Bush during the presidency.  The Madrid Agreement and the Madrid Protocol are parallel and independent treaties, with separate but overlapping rules and accessions. The differences between the two treaties are as follows: in a recent decision (BGE 134 III 555, 8 July 2008), the Supreme Court analysed and applied the differences between the Madrid Convention and the Madrid Protocol. The Commercial Court of Bern has asked the Bern Commercial Court to invalidate the Swiss part of the international brand FOCUS (owned by Focus Magazin Verlag GmbH and registered on 23 May 1996) for non-use. Basic registration in Germany has been the subject of several appeals. The parties did not dispute that FOCUS had not been deployed to Switzerland. The Tribunal dismissed the appeal on the grounds that the additional five-year period for the start of use had not begun until 8 October 2003, when the last opposition procedure in Germany was formally closed.