Introduction:

 

Language: Romanian

Capital: Chisinau

Area: 33,846 km2

Population: 2,998,235 (2014)

Currency: Leu (MDL)

Religions: Orthodox Christian (93%)

Geographical situation: landlocked country in Eastern Europe, bordered by Romania to the west and Ukraine to the north, east, and south.

 

 

 

International treaty membership:

 

Singapore Treaty on the Law of Trademarks (March 16, 2009)

Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (December 1, 1997)

Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (December 1, 1997)

Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks (December 1, 1997)

Trademark Law Treaty (August 1, 1996)

Convention Establishing the World Intellectual Property Organization (December 25, 1991)

Madrid Agreement Concerning the International Registration of Marks (December 25, 1991)

Paris Convention for the Protection of Industrial Property (December 25, 1991)

 

 

Legislation:

 

Law No. 38-XVI of February 29, 2008, on the Protection of Trademarks (as amended up to Law No. 101 of May 26, 2016)

 

Government Institutions:

 

State Agency on Intellectual Property (AGEPI)

 

Type of trademark:

 

Any sign (visual, auditory, olfactory, tactile), used to individualize and distinguish the goods and / or services of a natural or legal person from those of other natural or legal persons;

Moldova also recognizes certification, collective and well known marks.

 

 

Ground for refusal:

 

As most of the system, Moldova applies absolute and relative grounds for refusal.

Absolutes grounds consist in:

-  trademarks which do not possess distinguishing capacity

-  trademarks consisting only of designations or indications used in trade to indicate the form, quality, quantity, purpose, value, geographical origin, time of production of a good or provision of a service, or their other characteristics;

-  trademarks consisting only of signs or indications which have become generally accepted in common parlance or fair and established commercial practice;

-  trademarks consisting only of the shape of a good, established by its nature, or necessary for obtaining a technical result or providing it with substantive value

-  trademarks capable of causing damage to the image and/or interest of the state or contravening public order or morality, particularly anti­human appeals, words, indecent reproductions and signs, as well as those that would harm the dignity of persons, minorities, ethnic groups, nations, their religious, national, professional feelings etc.;

-  trademarks reproducing or imitating State coats of arms, flags and emblems, full or abbreviated names of international and intergovernmental organizations, official control, guarantee and hallmarks, seals, awards and other signs of distinction, which in the absence of authorization from the competent authorities, shall be refused.

 

Relatives grounds, are only taken in consideration upon opposition by a third person, and consists in:

- Trademark which are similar or identical for same kind of goods or services than an earlier registered mark or a well-known mark.

 

 

 

Application content:

 

A trademark registration application shall be filed with the Agency by any natural person or legal entity and shall relate to one trademark only. Registration of a trademark may be requested by natural persons or legal entities either individually or jointly. In the case of an application filed by two or more persons, a registered trademark shall become the joint property of those persons in accordance with civil legislation

An application shall be filed on the model form approved by the Agency in the state language. The documents attached to an application shall also be submitted in the state language. Where the attached documents are filed in another language within two months of the application filing date, a translation thereof into the state language shall be provided.

 

A trademark registration application compiled in the state language shall contain:

-  a direct or indirect indication that trademark registration is requested;

-  information allowing the personal details of the applicant to be established (name/denomination and address);

-  information allowing the Agency to contact the applicant or, where necessary, its authorized representative;

-  a sufficiently clear reproduction for the marks

-  a list of goods and/or services for which trademark registration is requested;

-  a document confirming payment of the application filing fee in the amount established.

 

 

 

Application process:

 

The application filing date shall be the date of submission by the applicant to the Agency of a trademark registration application in accordance with the requirements described upon.

First step is the formal examination; within one month of the registration application filing date, the Agency shall verify compliance with the requirements of application.

Before substantive examination the trademark application is published in the Official Bulletin of Intellectual Property, opening a 3 months period where third person can make an opposition to the registration of the mark. The applicant will have 2 months to make observation on opposition.

Within 3 months of the expiry date of the period for submitting observations and oppositions by third parties, AGEPI shall conduct the substantive examination of the application concerning compliance with the trademark protection requirements, subject to payment of the fees established. AGEPI will verify if the application complies with absolute and relative ground for refusal, will accept or reject partially or totally the application and, within 1 months, will notify the applicant of its decision.

In case of AGEPI accept the registration of the trademark information shall be entered in the National Register of Trademarks and the trademark owner shall be issued with a trademark registration certificate. Information on trademark registration shall be published in the BOPI.

 

Refusal:

 

If the application is missing some required elements the Office shall inform the applicant of infringements detected and grant it a period of two months from the application filing date to remove those infringements.

If a trademark does not comply with the requirements for registration on absolute or relative grounds for refusal, for all or part of the goods and/or services for which it is requested, the application for registration of the trademark shall be refused in relation to the corresponding goods and/or services.

The application for registration of the trademark shall not be rejected unless the applicant was notified, by a provisional notice, of the grounds on which registration may be refused in whole or in part. Within two months of receipt of the notification, the applicant shall be entitled to file an appeal against the provisional notice of refusal by presenting arguments supporting trademark registration, withdraw the application for one or more classes of goods / services or for certain goods / services, or request entry of the amendment, subject to payment of certain fees for the said operations.

Any decision on trademark registration applications may be challenged by the parties within two months of the date on which a decision is received or by third parties within one month of the date on which the decision was made public. A challenge shall have suspensory effect.

 

Rights of exploitation and related delay:

 

Trademark registration shall be valid for ten years from the application filing date. Registration may be extended by ten consecutive years an unlimited number of times, and renewal may be requested within the last 6 months of validity of trademark registration. The application for renewal of trademark registration shall not be deemed to have been filed until the required fee has been paid. Registration may also be renewed during 6 months after the expiry of the term of protection, subject to the payment of an additional fee

 

Trademark registration shall grant the owner the exclusive right in a trademark. The trademark owner shall be entitled to prohibit third parties from using, in their commercial activity, without its consent:

-  a designation identical to a trademark for goods and/or services identical to goods and/or services for which the trademark was registered;

-  a designation which, because it is identical or similar to a registered trademark and because it is identical or similar to goods or services for which it is used as a designation and also as a trademark, causes a risk of confusion by a user, including the risk of association of the designation and the trademark

-  using a designation on the Internet, inclusively as a domain name.

The exclusive right in a trademark shall be valid for third parties from the date of publication of a decision to register the trademark in the BOPI or from the date on which information on trademark registration is entered in the International Register.

 

Transfer and conditions:

 

The rights in a trademark may be transferred fully or partially by means of assignment, on the basis of a licensing agreement, and also by means of legal succession.

Pledge of trademarks shall be recorded in the Register of security interests under the Law on Pledge. Other trademarks rights are registered in the National Register of applications for registration of trademarks or the National Register of Trademarks, and become opposable to third parties from the registration date, and data on these rights shall be published in BOPI.

a trademark shall be assigned in writing and with the signatures of the Contracting Parties, apart from in cases where an assignment is the result of a court decision. In the opposite case, an assignment shall be invalid.

The Agency shall refuse to register an assignment agreement if it is obvious that as a result of the assignment a trademark may be likely to mislead users, in particular as regards the nature, quality or geographical origin of the goods and/or services for which it has been registered, apart from in cases where the assignor agrees to limit trademark registration to the goods and/or services in relation to which there will be no risk of confusion.

 

Certification:

 

In case of AGEPI accept the registration of the trademark information shall be entered in the National Register of Trademarks and the trademark owner shall be issued with a trademark registration certificate.

 

Withdrawal and cancellation:

 

A trademark owner can be deprived of his right on the base of a claim if :

-  he didn't use his mark for an uninterrupted five years period.

-  as a result of the owner’s activity or inactivity, the trademark has become the generally used name of a good and/or service for which it was registered;

-  as a result of use directly by the owner or with its consent, the trademark is likely to mislead the user, in particular as regards the nature, quality, or geographic origin of the goods and/or services for which it was registered.

-  the permission to use the official or historical name of the State in the trademark for a good and/or service has been withdrawn, in accordance with the legislation

If an owner is deprived of rights fully or partially, the effect of trademark registration, provided for by this Law, shall be terminated accordingly from the date of submission of the request for deprivation of rights or a counterclaim

An applicant shall be entitled at any time to withdraw a trademark registration application or limit the list of goods and/or services which it includes. If the application has already been published, information on withdrawal or limitation shall also be published in the BOPI.

 

Customs protection:

 

The right holder shall submit an application before customs in order to protect his trademark from infringement. If the application is accepted customs will apply enforcement of protection measures.

Having established that an infringement of rights has taken place, a court may, at the applicant’s request, order measures to be taken in relation to the goods infringing the rights in a trademark and, in appropriate cases, in relation to the materials and equipment which were used in creating and manufacturing these goods. Such measures shall include in particular:

-  temporary removal of the goods from commercial circulation;

-  final removal of the goods from commercial circulation;

-  destruction of the goods – where a trademark cannot be removed from an item without the item being destroyed, and also where the removal of a trademark is insufficient for the purposes of excluding the infringement of rights

 

Sources:

 

WIPO.int:

 

- Law No. 38-XVI of February 29, 2008, on the Protection of Trademarks (as amended up to Law No. 101 of May 26, 2016)

- Customs Code of the Republic of Moldova No. 1149-XIV of July 20, 2000 (2010)

 

Vincent Lagier
 

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眾律國際法律/專利商標事務所

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