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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of May 29, 2003 No. 10

About control of constitutionality of some provisions of the Law No. 588-XIII of September 22, 1995 "About trademarks and names of places of goods origin" *, added with the Law No. 65-XV of April 12, 2001 **, the orders of the Government No. 852 of August 16, 2001 "About procedure for use of the trademarks which are state-owned property" *** and No. 1080 of October 8, 2001 "About approval of the List of the trademarks which are state-owned property" ****

Name of the Republic of Moldova,

Constitutional court in structure:

Victor PUSKAS is chairman

Mircha of the SOUTH - the judge-speaker

Konstantin LOZOVANU is judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge

Ion VASILATI is judge with the assistance of Maya Tsurkan, the secretary of meeting, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Victor Kretsu, the permanent representative of the Government in the Constitutional court, Emil Rusu, Sergey Pynzara, Nicolae Taran, Andrey Moisey, representatives of the Government, in the absence of the representative of the Highest trial chamber invited in accordance with the established procedure according to Art. 135 of the h. (1) item g) Constitutions, Art. 4 of the h. (1) item g) Law on the Constitutional court, Art. 4 of the h. (1) item g) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of some provisions of the Law N588-XIII of September 22, 1995 in edition of the Law N65-XV of April 12, 2001, and also the orders of the Government N852 of August 16, 2001 and N1080 of October 8, 2001.

The appeal of the Highest trial chamber provided on January 3, 2003 according to Art. 24 and 25 of the item d) the Law on the Constitutional court, Art. 38 of the h formed the basis for consideration of the case. (1) item d) and Art. 39 of the Code of the constitutional jurisdiction.

The address was accepted determination of the Constitutional court of January 27, 2003 to consideration on the merits and is included in the agenda.

During preliminary consideration of the address the Constitutional court requested the conclusions of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Ministry of Justice, the Ministry of Economics, Academy of Sciences, faculty of the right of MSU, Department of the right of ULIM, Agrarian and industrial department of "Moldova-Vin".

Having considered case papers, having heard the message of the judge-speaker and arguments of participants of meeting, the Constitutional court established:

1. On September 22, 1995 the Parliament adopted the Law of N588-XIII on trademarks and names of the place of goods origin (further the Law N588-XIII) which governs the relations arising in connection with registration, legal protection and use of trademarks and names of places of goods origin (geographical instructions). On April 12, 2001 the Law N65-XV Parliament added Art. 6 of the specified law with parts (4) and (5).

Part (4) provides that the exclusive right does not extend to trademarks which legally owned and two and more legal entities used till January 1, 1992. Use by specified persons or their legal successors of such trademarks is not further violation of the right of the owner of registered trade mark.

Part (5) determines that trademarks which legally existed and were used till January 1, 1992 by two and more legal entities appear property of the state. The procedure for their use is determined by the Government in special provision.

In pursuance of the above-named provisions on August 16, 2001 the Government accepted the Resolution N852 "About Procedure for Use of the Trademarks Which Are State-owned Property" (daleepostanovleny N 852) which approved Regulations on procedure for use of the trademarks which are state-owned property, and on October 8, 2001 - accepted the Resolution N1080 "About Approval of the List of the Trademarks Which Are State-owned Property" (further - the Resolution N 1080) which some trademarks which till January 1, 1992 were legally belonging and used by two and more legal entities were recognized as exclusive state-owned property.

According to the Resolution of February 15, 2002 of the Appeal commission of the state agency on protection of industrial property of the right of the owner to registered trade mark "Ambassadorial", belonging to sole proprietor company "M. M. Karimov", were transferred to other legal entity. Including illegal the decision passed by the commission, the head of sole proprietor company disputed it administratively in Appeal chamber. During consideration of the case the Appeal chamber accepted the petition of the representative of the specified company for application of provision of Art. 11 of the p. 4 of the Civil Procedure Code and addressed to the Highest trial chamber with idea of request in the Constitutional court concerning permission of exceptional case of illegality of some provisions of the Law N588-XIII and the orders of the Government N852 and N1080.

Plenum of the Highest trial chamber based on the right granted by the Constitution (Art. 135 of the h. (1) the item g), made inquiry about permission of exceptional case of illegality of Art. 6 of the h. (4) and (5) the Law N588-XIII in edition of the Law N65-XV, and also the orders of the Government N852 and N1080 contradicting according to Appeal chamber, the Art. 1, 46, 102, 126 and 127 Constitutions.

2. The constitution of the Republic of Moldova establishes the principles of market economy based on public and private property. Thus, the property becomes integral part of society and state.

Both in economic, and in legal relations собственностьэто the highest manifestation of access for the person to ownership, use and the order of property, some kind of method of realization of the power of the person over property.

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