眾律國際法律事務所

TRADEMARK SYSTEM IN AFGHANISTAN

Introduction:

Language: Pashto, Dari.

Capital: Kabul

Area: 652,864 km2

Population: 33,332,025 (2016)

Currency: Afghani (AFN)

Religions: Muslim

Geographical situation: bordered by Pakistan in the south and east; Iran in the west; Turkmenistan, Uzbekistan, and Tajikistan in the north; and China in the far northeast.

International treaty membership:

Paris Convention for the Protection of Industrial Property (May 14, 2017)

Singapore Treaty on the Law of Trademarks (May 14, 2017)

Convention Establishing the World Intellectual Property Organization (December 13, 2005)

World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) (July 29, 2016)

Legislation:

Trademark Registration Law (2009)

Government Institutions :

Ministry of Information and Culture (MoIC): Department of Planning and External Affairs Ministry of Information and Culture of Islamic Republic of Afghanistan.

The Central Registration Office (the Trademarks Section)

Type of trademark :

Names, words, signatures, letters, figures, drawings, symbols, titles, seals, pictures, inscriptions, advertisements or packs or any other mark or a combination thereof.

Collective and well-known marks can also be registered.

Not registrable :

The following list gather the ground criteria for a refusal: 

-  National flag, State emblems and other symbols pertaining to domestic or foreign organizations or institutions, international organizations or institutions, or any foreign county unless their use is authorized in writing.

-  any marks which are identical or similar to symbols of a purely religious nature.

-  The pictures of national leaders and high-ranking authorities of the State.

-  Words and 'phrases that could be confused with the government departments of Afghanistan.

-  Marks of official organizations

-  Any marks repugnant to chastity, morality and public order.

-  A mark which is not distinctive in character or property or where the mark consists of names commonly given by tradition to goods, products or services, or familiar drawings and ordinary pictures of goods and products. Such marks may be used generally, but may not be used or registered, and shall not be given any protection, as a trademark.

-  Geographical names where the use thereof may cause confusion as to the origin or source of the goods, products or services.

-  The name, surname, photograph or emblem of a third party, unless he/she or his/her heirs' prior consent to use has been obtained.

-  Marks which may mislead the public or which contain false or deceptive information on any characteristic of the good.

-  Marks containing imaginary, imitative or forged names.

-  Marks related to juristic or legal entities and the use of which is prohibited.

-  Use of company marks published and disseminated in Afghanistan unless authorized by their owners.

-  Marks related to identical goods or services or similar registered trademarks or symbols.

-  Marks which are used for specific purposes. identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion.

Application content:

Persons or entities may apply for registration of a trademark either personally or through their respective legal representatives.

The application must contain:

-  The registration date, including (day, month and year) in words.

-  Name, occupation, address of the residence and citizenship of the applicant for trademarks registration; and where the application for registration is made by his/her legal representative, the same information shall also be given concerning his/her legal representative.

-  Name, description and nature of goods, products and/or services for which the trademark is used.

-  Explanation of symbols and expressions used in the trademark and definition of their components, if any.

-  Full payment of the entire payable registration fees.

Application process:

The Central Registration Office (the Trademarks Registration Section) shall be obligated to review the applications from the point of view of their form, nature and their compatibility with the provisions of the law and shall either accept or reject the application within 30 days from the day of the receipt of the application.

In case of rejection, the Central Registration Office shall be obligated to clearly mention the reasons for rejection. In such a case, the applicant may, within 15 days seek the remedy and resubmit his application to the Central Registration Office (the Trademarks Registration Section) or appeal the rejection to the local commercial court.

The registered trademark, which is sent for publication in the Official Gazette, shall contain the following information: .

-  Trademark Registration Date

-  Trademark Display Application Date

-  List of goods, products or services relating to the trademark Classification of goods, products and services

-  Name and citizenship of the owner of the trademark and names of agents,

-  (if any) Occupation Country and address of the office of notary public of the owner of trademark

-  Changes relating to the trademark and the rights being requested by the applicant.

Refusal:

The Central Registration Office shall deny the application if it doesn't meet the registration's criteria or if the mark has been already registered.

Rights of exploitation and related delay:

The trademarks shall be protected from the date of the submission of the application to the Central Registration Office.

A registered trademark shall be valid for a period often 10 years, which may, upon request by the owner, be extended for successive 10 year periods. The owner of the trademark shall, within six months prior to expiry of the protection ask for the extension of protection.

The owner of the trademark cannot, during the course of renewal, bring changes in the registered trademark or in the list of goods, products or services for which the trademarks has already been registered.

Transfer :

Trademarks are transferable and the transfer shall be valid if recorded separately with the Central Registration Office. The law doesn't gives any detail on the transfer's condition.

Certification:

After being registered by the Central Registration Office on the Official Gazette, the office can, upon request, furnish the applicants with a copy of the list of trademarks against payment of a fixed amount of fee.

Withdrawal and cancellation:

The right to ownership of the trademark shall terminate in the following cases:

-  Cessation of trade, industry, agriculture and services, which may relate to ownership of specific trademarks.

-  Sale or other transfers of the right of ownership to a third party in accordance

with provisions of law.

-  Failure to apply for renewal of the trademark registration right within six months of expiration of the registration according to Article 19 of the present law.

-  Where it is proved that the trademark has not been used for three consecutive years, the relevant commercial court may issue an order concerning termination thereof, unless the owner of the trademark provides justification for the non-use thereof within the specified period of time.

Customs:

Customs may, for reasons of protection of industrial and commercial property adopt prohibitions or restrictions, consisting as seizing the good. If the goods enters the definition of smuggling goods, those one shall not be release and may be destroyed by the customs, or return to the owner of these goods, if this one can prove that he was not involved in the smuggling process.

Sources: 

WIPO.int:

Trademark Registration Law (2009)

Custome code of Afghanistan

Vincent Lagier 2017-4-17