of February 29, 2008 No. 38-XVI
About protection of trademarks
The parliament adopts this organic law.
This law creates necessary base for application of Regulations of Council (EU) No. 207/2009 of February 26, 2009 about the trademark of the Community (published in the Official magazine of the European Union, No. L 78 of March 24, 2009); Regulations of the Commission (EU) No. 2868/95 of December 13, 1995 about application of Regulations of Council (EU) No. 40/94 of December 20, 1993 about the trademark of the Community (published in the Official magazine of the European Union, No. L 303 of December 15, 1995); Directives of the European parliament and Council 2004/48/EC of April 29, 2004 about ensuring intellectual property rights (published in the Official magazine of the European Union, No. L 157 of April 30, 2004).
(1) This law regulates the legal relationship arising in the course of registration, legal protection and use of trademarks.
(2) the Legal relationship specified in part (1), are regulated also by the Constitution of the Republic of Moldova, the Civil code of the Republic of Moldova, the Code of the Republic of Moldova about science and innovations, the Customs code of the Republic of Moldova, international agreements, one of the parties of which is the Republic of Moldova, and other regulations.
(3) If international agreements in the field, one of the parties of which is the Republic of Moldova, other regulations are established, than those which contain in this law are applied regulations of international agreements.
For the purpose of this law the following basic concepts are determined:
the trademark – any designation (visual, sound, olfactory, tactile) allowing to individualize and distinguish goods and/or services of one physical person or legal entity from goods and/or services of other physical persons or legal entities;
the collective trademark - the trademark used by merging of manufacturers, producers, okazatel of services or sellers or other similar organizations for designation of their goods and/or services;
the certified trademark (mark of conformity) - the trademark used for certification of certain characteristics of goods and/or service;
the well-known trademark - the trademark widely known in the Republic of Moldova for date of application for registration or for date of the priority asked in the request in the corresponding group of people concerning goods and/or services for which the trademark, without the need for registration or use of the well-known trademark in the Republic of Moldova is applied to its opposition;
the applicant - physical person or legal entity or group of physical persons and/or legal entities from whose name the application for registration of the trademark is submitted;
the patent agent - the physical person certified and registered in accordance with the established procedure representing the interests of national or foreign physical persons and legal entities and giving them necessary assistance in the field of protection of objects of industrial property;
the agent or the representative of the owner of the trademark – the physical person or legal entity which is with the owner of the trademark in any of type the relations based on the agreement on the commercial cooperation in written or oral form allowing to create the trusting relationships assigning to the applicant, directly or directly, general obligation of trust and loyalty in relation to interests of the owner;
the international request - the application for the international registration of the trademark submitted according to the Madrid agreement, the Protocol to the Agreement or, in appropriate cases, according to both of them;
the international registration - registration of the trademark according to the Madrid agreement or the Protocol to the Agreement;
The international register - official selection of data on the international registration which is conducted by the International bureau which record is provided by the Madrid agreement, the Protocol to the Agreement or the General instruction, irrespective of the carrier on which they are stored;
General instruction - General instruction for application of the Madrid agreement and Protocol to the Agreement;
the Union countries - the countries to which the Parisian convention is applied and which united in the Union on protection of industrial property.
The rights to the trademark are acquired and protected in the territory of the Republic of Moldova in the way:
a) registration according to provisions of this law;
b) the international registration according to the Madrid agreement on the international registration of signs of April 14, 1891 (further - the Madrid agreement) or to the Protocol to the Madrid agreement on the international registration of signs of June 27, 1989 (further - the Protocol to the Agreement);
c) recognitions of the trademark well-known.
(1) the State agency on intellectual property (AGEPI) (further - the Agency) represents national department in the field of intellectual property and is the single body providing according to this law protection of trademarks in the territory of the Republic of Moldova.
a) develops drafts of legal and other regulations in the field of trademarks, instructions, other materials necessary for application of this law;
b) accepts requests for registration of trademarks and carries out their expertize, registers and grants registration certificates of trademarks on behalf of the state, publishes official data in the Statement of intellectual property (further - OBIS);
c) provides completing and storage of national fund of trademarks;
d) is department of origin for requests for the international registration of the trademarks having country of source the Republic of Moldova, submitted national or foreign applicants according to provisions of the Madrid agreement and Protocol to the Agreement;
e) keeps the National register of requests for registration of trademarks and the National register of trademarks according to the Regulations on the procedure of giving, examination and registration of trademarks approved by the Government (further – the Provision);
f) considers and registers license agreements, agreements on concession and on franchizing concerning the rights to the trademark;
g) performs other functions provided by the law.
(3) the Agency represents the Republic of Moldova in World Intellectual Property Organization, in other international and interstate organizations for protection of intellectual property, maintains the cooperation relations with them in this area.
Part 1. Trademarks. The bases for refusal in their registration
As trademarks any designations can be registered:
a) able to be provided graphical: words (including personal names), letters, figures, drawings, colors, color combinations, graphic elements, three-dimensional images, in particular forms of product or its packaging, the hologram, position designations;
and also any combinations of these designations provided that such designations allow to distinguish goods and/or services of one physical person or legal entity from goods and/or services of other physical persons or legal entities.
The owner of the trademark is any physical person or legal entity or group of physical persons and/or legal entities on whose name the trademark is protected according to this law. The rights acquired by registration of the trademark in the National register of trademarks are confirmed by the security document - the registration certificate of the trademark. The rights to the trademark can individually be acquired or in the form of joint indivisible property. The procedure for use of the rights of sovladeniye to the trademark is established by the agreement signed between co-owners. Otherwise the dispute is resolved by competent degree of jurisdiction.
(1) registration is not allowed:
a) the designations which are not answering to the conditions provided in Article 5;
b) the trademarks which do not have distinctive capability;
c) the trademarks consisting only of the designations or instructions serving in trade for specifying of type, quality, quantity, appointment, value, geographical origin, time of production of goods or rendering service, other their characteristics;
-1) from the trademarks consisting only of the designations having laudatory character;
d) the trademarks consisting only of the signs or instructions which became commonly accepted in the everyday speech or the fair and settled commercial practice;
e) the trademarks consisting only of the form of goods caused by its nature, or necessary for receipt of technical result, or giving it essential value;
f) the trademarks causing damage to image and/or interests of the state or contradicting public order or moral standards, in particular, of appeals of inhuman nature, words, images and obscene designations, and also offending advantage of the personality, minorities, ethnic groups, nations, their religious, national, professional and other feelings;
g) the trademarks capable to mislead consumers concerning geographical origin, quality or the nature of goods or services;
h) the trademarks reproducing or imitating the State Emblems, flags and emblems, full or abbreviated names of the international and intergovernmental organizations, official control, warranty and assay brands, seals, awards and other distinctions which for lack of permission of competent authorities shall be rejected according to provisions of article 6 ter of the Parisian convention on protection of industrial property of March 20, 1883 (further - the Parisian convention);
i) the trademarks reproducing official or historical state or its reducing or names of administrative and territorial units, signs, emblems or badges which are not protected according to article 6 ter of the Parisian convention which are of particular public interest, except as specified, when their registration is resolved by competent authorities;
j) the trademarks having great symbolical value, in particular, of religious symbols;
k) the trademarks containing or consisting:
- from the geographical specifying intended for identification of wines or other alcoholic products provided that the application for registration of the trademark is submitted after the request for registration of geographical specifying or the name of the place of origin; or
- from the designation identical or similar to the geographical specifying or the name of the place of origin protected in the territory of the Republic of Moldova
in cases when the goods origin does not correspond to geographical specifying or the name of the place of origin even if the authentic place of goods origin is specified or if geographical specifying or the name of the place of origin is used in translation or in combination with such words as "sort", "type", "style", "imitation" or to that similar and also in case trademarks are asked for the goods which are not covered by the protected geographical specifying or the name of the place of origin in that measure in what these goods are comparable to goods concerning which geographical specifying or the name of the place of origin is protected, or in that measure in what unreasonable use of the asked trademark will allow to receive illegal benefit from reputation of the protected geographical specifying or the name of the place of origin;
l) trademarks which use contradicts also other regulations, except the acts relating to intellectual property.
(2) Provisions of Items b) - d) parts (1) are not applied if the applicant provides sufficient evidences of the fact that the trademark acquired as a result of use distinctive capability concerning the declared goods and/or services before date of application about its registration.
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