BELARUS
almost fi ve years may pass from the date of international registration to the date when the mark is actually granted protection in Belarus.
SOME PRACTITIONERS SUGGEST THAT IN EACH PARTICULAR CASE THE COURT SHOULD EVALUATE THOSE PROVISIONS OF A DISTRIBUTION CONTRACT WHICH CONCERN RESPONSIBILITY FOR THE ORGANISATION OF A SHIPMENT.
Apparently, not every rightholder will be willing to commence the use of a pending trademark, especially if the provisional refusal was based on a prior registration of a similar mark. Unfortunately, in the situation described, the Belarusian legislation doesn’t provide for suspension or extension of grace for the non-use period, though it may totally overlap with the period of overcoming the refusal. But it is possible to claim acknowledgement of contestation of refusal to be a due reason for non-use before the court.
Another crucial issue that arises in most non-use cancellation cases is the question of what shall be considered proper use of the trademark. According to Article 20.1 of the Belarusian Trademark Law “application of a trademark to goods for which it is registered and upon labelling, packaging, in the global computer network Internet (including domain names), in documents concerning the putting of the goods on the market, in connection with the performing of work and rendering of services, or the exploitation of a trademark with amendments to some of its elements, which amendments have no eff ect on its distinctive character and do not limit the scope of legal protection granted to the trademark, by the owner of the trademark or by any person to whom the right to use the trademark has been granted under a licence contract, shall be deemed to constitute use of the trademark”.
Before January 25, 2010 only application of the trademark to the goods or to their packaging was named as real trademark use. T e amendments to the Trademark Law substantially broadened the list and thus improved the rightholders’ position. T erefore, unlike the shortened grace period, it is an extended list that in our opinion should be applied in any non-use case irrespective of the date of trademark registration.
T e cited Article 20.1 explicitly says that only actions performed directly by the owner, or by a licensee, can constitute use of a trademark. T ere
www.worldipreview.com World Intellectual Property Review e-Digest 2013 37
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