Introduction:

 

Language: Bosnian, Croatian, and Serbian   

Capital: Sarajevo    

Area: 51,197 km2

Population: 3,531,159 (2013)

Currency: Convertible mark (BAM)

Religion: Islam (51%), Christian (46%)

Geographical situation: In Southeastern Europe located on the Balkan Peninsula. Bordered by Croatia to the north, west, and south; Serbia to the east; Montenegro to the southeast; and the Adriatic Sea to the south.

 

 

International treaty membership:

 

Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks (April 19, 2012)

WIPO Copyright Treaty (November 25, 2009)

Trademark Law Treaty (December 22, 2006)

Madrid Agreement Concerning the International Registration of Marks (March 1, 1992)

Convention Establishing the World Intellectual Property Organization (March 1, 1992)

Paris Convention for the Protection of Industrial Property (March 1, 1992)

Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (March 1, 1992)

Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (January 27, 2009)

 

Legislation:

 

Trademark Law (in force since January 1st, 2011)

 

Government Institutions:

 

The Institute of Intellectual Property Rights of Bosnia and Herzegovina

 

Type of trademark:

 

Registrable as a trademark are all distinctive and graphically representable signs, such as words, names, acronyms, letters, numbers, devices, combinations of colours, the three-dimensional form of a good or its packaging and any combination of the mentioned signs.

The following trademark types are registrable: trade marks, collective marks and guarantee marks

 

Ground for refusal :

 

As in most of the trademark system, the Bosnian trademark gives absolute and relatives ground for refusal.

 

Absolute grounds:

A trademark shall not protect a sign:

-  which is contrary to public order or morality;

-  which cannot be represented graphically;

-  which is identical with an older trademark or an earlier applied for sign for identical goods or services;

-  which, by its overall appearance, is not capable of distinguishing goods or services in the course of trade, for those goods or services for which a trademark application has been filed;

-  which consists exclusively of signs or indications which serve, in the course of trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin of a product, the time or manner of production of the goods or of service providing or to designate other characteristics of the goods or services;

-  which consists exclusively of signs or indications which have become customary in the everyday or technical language, or in the bona fide and the established practices of trade for designating certain kinds of the goods or services;

-  which represents the shape determined exclusively by the nature of the product or the shape of product necessary to obtain a particular technical result or the shape which gives substantial value to the product;

-  which by its appearance or content may deceive the public, in particular, as to the geographical origin, kind, quality or other characteristics of the goods or services;

-  which contains official signs of quality control or warranty, or imitates them;

-  which contains a national or other coat of arms, flag or emblem, the name or abbreviated name of a country or an international organization, as well as the imitation thereof, unless authorized by the competent authority of the country or organization concerned;

-  which contains the name or abbreviated name, coat of arms, emblem, flag or another official sign of BiH, or of its entities, cantons or the District or imitates them, unless authorized by the competent authority;

-  which represents or imitates a national or a religious symbol;

-  which is a sign for wines and which contains or consists of a geographical indication identifying wines or which is a sign for spirits containing or consisting of a geographical indication identifying spirits, with respect to the wines or spirits not having that geographical origin;

-  which represents exclusively an appellation of origin, internationally registered to have effect in Bosnia and Herzegovina.

 

The relative grounds for refusal shall be taken in consideration if an opposition for the registration of the trademark is filed. As a consequence a trademark shall not protect a sign:

 

-  which is identical with an earlier protected sign of another person for similar goods or services or similar to an earlier protected sign of another person for the identical or similar kind of goods or services if, due to such identity or similarity, there exist a likelihood of confusion in the course of trade, which includes the likelihood of association with an earlier protected trademark;

-  which is identical or similar to, for the identical or similar kind of goods or services, a sign of another person which is well-known in BiH,

-  which regardless of the goods or services to which it relates, constitutes a reproduction, an imitation or a transliteration of a protected sign of another person or the essential part thereof, which is known beyond any doubt by the participants in the course of trade in BiH as a sign of high reputation (hereinafter: a famous trademark) used by another person to designate his goods or services, if the use of such a sign would take unfair advantage of the reputation of a famous trademark or be detrimental to its distinctive character or reputation;

-  whose appearance or content infringes an older copyright or geographical indication or an earlier protected industrial design;

-  the use of which would infringe the right to the personal name of a renowned person or the personal portrayal of any person if the came into existence before the date of a trademark application or the date of the granted priority claimed in the trademark application;

-  which is identical with or similar to an earlier trademark which was registered for identical or similar goods or services and which has expired due to the failure to renew the registration if less than two years have elapsed from the expiry of the earlier trademark, unless the holder of the earlier trademark gave his consent for the grant of the later trademark or did not use his trademark.

-  which is filed contrary to the principle of good faith, conscientiousness and honesty.

 

 

 

Application content:

 

The essential elements of the application shall be:

-  the name and address of the applicant;

-  a request for the grant of a trademark;

-  a sign, which the applicant wishes to protect by a trademark;

-  a list of goods or services to which a sign relates in one of the official languages of BiH, which shall be drafted in accordance with the International Classification of Goods and Services, established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.

 

 

 

Application process with approval and refusal to grant the trademark protection:

 

The process of mark registration can take from 1 to 2 years.

Formal examination:

If the application does not contain the elements referred upon, the Institute shall invite the applicant to remove the deficiencies due to which the application could not be entered in the Register of Applications, within the period of 30 days, which may not be extended. If the applicant fails to remove the deficiencies within this period, the Institute shall reject the application by a conclusion.

If the applicant removes the deficiencies within 30 days, the Institute shall accord the date on which the applicant removed the deficiencies as detected as the filing date of the application by a conclusion. The application to which the filing date has been accorded shall be entered in the Register of Applications.

After the formal application the Institute shall examine whether the absolute grounds for the refusal of the application exist, this the substantive examination.

If the Institute finds that the application does not fulfill the conditions specified upon it shall, on the basis of the examination results, inform the applicant in writing of the grounds for which a trademark shall not be granted and shall invite him to file his observations, within a period which shall neither be less than 30 days nor more than 60 days.

 

After the examination, if there is no ground for refusal, the application will be publish in the Official Gazette of the Institute, this publication will open a period of 3 months for opposition by a third part.

If there is opposition the applicant has from 15 days to 30 days to make observations. Then the Institute will, on its own discretion, decide to grant the trademark or refuse the application.

Any party entirely or partially adversely affected by the decisions of the Institute issued in the first instance shall have the right to file an appeal within a period of 15 days from the day of receipt of the decision.

 

If after those step the trademark protection is granted, the applicant will be notified and will have to pays fees for administration, publication and issuance of certificate.

The decision will then, be published in the State Register and the Official Gazette of the institute. The certificate will also be issued.

 

 

 

Rights of exploitation and related delay:

 

The holder of trademark will be granted a protection for 10 years, renewable indefinitely. He has an exclusive right of exploitation on this mark and is allowed to prevent any third part to use this trademark for the same product and services, or that could mislead the public.

The trademark holder is also allowed to make someone use his mark by the mean of a license agreement, or transfer part or all the rights to a third part.

 

Transfer and conditions:

The transfer of a trademark or the rights conferred by an application may be made on the basis of a contract on the transfer of rights, as well as on the basis of a change of the status of the holder of a trademark or the applicant or a court or administrative decision.

This transfer shall be entered in the registered, but will be rejected if it lead to confusion for the public, unless the new right holder agrees to waive the protection for those kind of goods or services in respect of which there is likelihood of confusion.

 

The transfer agreement shall contain: indication of the contracting parties, the number of a trademark or the number of the application and the amount of remuneration if agreed upon, and the goods or services which are the subject of the transfer.

The Institute shall publish in the official gazette that the transfer of rights.

 

Certification:

 

The Institute shall issue a trademark certificate together with a decision on the grant of the trademark.

 

Withdrawal and cancellation:

 

The applicant may abandon the application in whole or in relation to some of the goods or services in the course of the procedure.

A trademark may be terminated even before the expiration of a time limit

-  if the holder of a trademark surrenders his right – on the day following the day on which the holder has submitted the declaration of surrender to the Institute;

-  on the basis of a court decision, or a decision issued by the Institute, on the day specified by the decision;

-  if a legal person or a natural person, who is the holder of a trademark, ceased to exist, or died - on the day the legal person ceased to exist or the natural person died, unless the trademark has been transferred to legal successors of such persons;

-  if an earlier right was registered;

-  If the right holder didn’t use the trademark for a consecutive period of five years;

-  if the protection is used only for export;

-  if the trademark has become a generic term;

if a sign protected by a trademark has become contrary to the morality or public order;

 

 

Customs protection:

 

The holder of exclusive rights under this Law, who reasonably believes that the importation, transit or export of goods manufactured in contravention of the provisions of this Law shall take place, may apply for protection of his rights with the authority competent for customs matters by means of customs measures of temporary impounding of the goods.

Where in the course of the customs procedure a customs outpost finds the goods matching the description of the goods indicated in the decision of the competent customs authority, it shall temporarily impound such goods.

If the holder of the goods cannot prove that those goods are not counterfeit or a decision of a court declare that they are infringing a trademark protection, those goods shall be seized and destroyed by customs.

 

Sources:

 

WIPO.int: Trademark law of Bosnia and Herzegovina 2010

Customs Policy Law of Bosnia and Herzegovina (2004)

 

Vincent Lagier

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眾律國際法律/專利商標事務所

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