This new law has also affected the condition of trade mark registration, these conditions being presented in a broader and explicit way. Article 5 regulates that the following trademarks are excluded from protection and cannot be registered:
- marks which are not susceptible of graphical representation;
- marks lacking a distinctive character or made up exclusively of signs or of indications become ususal in the daily language or in the fair commercial and constant practice, or made up of signs which represent characteristics of the products or services;
- marks made up exclusively of the shape of the products, imposed by the nature of the products or necessary to obtain a technical result of giving a substantial value to the product;
- marks which cannot mislead the public regarding the geographical origin, the quality or nature of the product or service;
- marks which include a geographical indication or which are made up of such indication, for products non originating from the indicated territory, if the utilisation of this indication can mislead the public concerning the real place of origin;
- marks which are made up or include a geographical indication, identifying wines or alcoholic beverages non originating from the indicated place;
- marks which are not against the public order or the good behaviour;
- marks which include , without the consent of the owner, the image or the patronymic name of a person who is well known in Romania;
- marks which include without the authorisation of the competent bodies, reproductions or imitations of coat of arms, flags, state emblems, signs, official seals for control and guarantee, armorial bearings belonged by the countries of the Union entering under the provision of article 6 ter in the Paris Convention;
- marks which include without the authorisation of the competent bodies, reproductions or imitations of coat of arms, flags, state emblems, logos, initials or denominations entering under the provisions of article 6 ter of Paris Convention and belonging to the international inter-governmental organisations in which one or several countries of the Union is part.
Article 6 of the law regulates that a mark is rejected from registration if:"
- is identical with a previous mark and the products and services for which the mark was asked are identical with those for wich the previous mark is registered;
- is identical with a previous mark and the products and/or services are similar to those for wich the previous mark is protected, if there is a risk of confusion for the public;
- is similar with a previous mark and is intended to be applied to products and or services identical or similar, if there is a risk of confusion for the public, including the risk of association with the previous mark.
We would like to emphasise the fact that the old law stipulated that the signs which were identical or similar with a previous mark could not be registered and on the other hand the new law stipulates the rejection of a mark if there is a risk of confusion or association between marks.
The article 6 also stipulates the fact that a mark is rejected from the registration if is identical or similar with a notorious trade mark in Romania for the identical or similar products or services. This provision was stipulated in the previous law. Moreover the new law stipulates that a mark is rejected if it is identical or similar with a notorious mark even the products and/or services are different from those to which the mark refers and of which registrations asked, if, by unjustified utilisation of the applicant could have a benefit from the distinctive character or from the name of the notorious mark or this use could bring prejudices to the owner of the notorious mark.
The content of this article is intended to provide general information on the subject matter. For specific circumstances, please contact us for full advice.
