duminică, 18 mai 2014

Against all warnings received, let’s continue with the point 8 of the “October Instruction”.

Point 8 of the instruction following content:

"In the application of Article 5, paragraph 1, letters i) and m) of the Law, are not published those trademarks that contain elements or which in their entirety, are manifestly contrary to  public order or morality, or  are containing signs with high symbolic or religious value or racial discrimination. Publication will be stopped by a note from the Legal Division and will be notified to the applicant, in writing and motivated."

This provision is completely outside of the law and implementing regulation, which do not contain any provision as a ground for stopping of publication.  This is further aggravating by the fact that the publication procedure, according to the law, has some consequences which makes the whole registration procedure of the trademark application highly questionable.

A parenthesis has to be made. The point 8 of the instruction highlights a serious issue of the trademarks law, which has its origin in the same lack of correlation of the provisions in the old law with amendments made in 2010. Firstly, it is important to note that the old trademark law did not contain any provisions regarding the publication of the trademark applications, but only for the registered trademarks, for which the publication was made after the decision of registration. The serious error in the new trademarks law is that it obliges OSIM to publish the trademark applications before the examination - meaning the examination of absolute grounds for refusal stated in the law. And from here, obviously, start other unfortunate consequences, namely publishing the application before giving it the required validity, i.e. without the examination fee paid, payment that in fact represents the proof of a real intention to obtain a trademark registration.
It is important to note that the publication of an application marks its entry into a period of provisional protection. This provisional protection gives to the applicant similar rights with the ones of a trademark holder. Given that currently OSIM publishes the trademark applications only after a formal examination and without any substantive examination, I think it is obvious what consequences this may have, how many abuses can occur in this case.

In this respect, it has been submitted to the management of OSIM, starting with February 2011, some proposals to amend the trademarks law by Government Ordinance, which were completely ignored.

It is impossible to understand why it was chosen an illegal way to modify a law, in a completely useless issue (the applications which really should be not publish being about 0.002% per year or less, from the total number of applications), and was refused the normal and necessary modifications of the trademarks law in a legal manner, which would solve many important problems of the trademarks law, including that one with embarrassing” or “profanity” trademarks applications. More than that, even the trademark low in force contains solutions for this issue and this abuse was not necessary. 

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