New Trademark Law Enters into Force in Belarus
In January 2016, Belarus adopted a new trademark law, which entered into force on July 15, 2016. It brings about changes necessitated by economic and legal developments in Belarus and aims to clearly specify the scope of trademark rights and outline local trademark procedures.
The new law introduces an amended list of relative and absolute grounds for refusal, making the registrability threshold more stringent. Under the new law, relative grounds examination includes checking new trademark applications against earlier, third party industrial designs and plant varieties, along with the earlier, third party trademarks and commercial names.
As regards absolute grounds for refusal, the former law prohibited trademarks or designations that consist solely of signs or indications which serve to designate the kind, quality, quantity, intended purpose, value, the place or the time of production of the goods or of rendering the service. The new law prohibits registration of trademarks if the signs or indications hold a dominant position.
In an attempt to harmonize and rationalize formal application requirements, the law no longer allows haphazard indication of the applied-for goods and services. Instead, it obliges the applicant to group the list of goods and services into classes in an orderly fashion.
A new provision has been added concerning the method of representation of a three-dimensional mark, which should be represented in two dimensions as either a drawing or a photograph. The provision leaves flexibility to the applicant as to the number of representations they might want to include, be that a single image or a set of images showing the mark from different angles. Another provision establishes a mandatory color claim and invites the applicant to use the CMYK color model by either naming the colors or color codes.
Importantly, under the new law, information related to trademark applications that successfully passed formal examination will be made public, to enable third parties to comfortably track and examine new applications. Trademark details should be published online within two months following the end of formal examination.
Efforts to shorten the registration process resulted in a time limit of two years and two months for the examination period, two months of which will be allocated to formal examination, while two years will be reserved for substantive examination. Additionally, the time for publication in the Official Bulletin should be factored in, which has been shortened to two months (previously it was three months). One month has been set for the issuing of a registration certificate. Thus, in total, the whole registration process should not exceed a period of two years and five months.
Amendments were also introduced regarding license agreement requirements. The new law introduces an alternative to the usual and obligatory quality control provision (“the quality of goods and services manufactured or rendered under license shall not be inferior to the quality of goods and services of the trademark holder”). So called quality indicators – GOST standards maintained by the Euro-Asian Council for Standardization, Metrology and Certification (EASC), a regional standards organization, may now be used to enable licensors, who have not put any goods on the market, and are thus unable to provide any information on the quality of goods, to actually sign the license agreement.
Remuneration provision mandatory for businesses entering license agreements is now also explicitly inscribed into the law.
Finally, trademarks that lapsed into public domain are no longer subject to cancellation actions before the Board of Appeals, which generally has jurisdiction over other matters such as reviewing cases that involve unlawful trademark registration. To cancel a trademark that has become generic a cancellation action should be now brought before the Supreme Court.
By: Viktoriia Smyrnova
For more information, please contact Viktoriia Smyrnova at our Ukraine office.
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