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Amendments to Trademark Laws

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Apr 11, 2018 (Newsletter Issue 7/18)
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Dilemma over Non-Use Grace Periods

The IP-related provisions of the EU-Ukraine Association Agreement, signed and ratified by Ukraine in 2014, came into force on September 1, 2017. New rules regulating the non-use grace period for trademarks were thereby introduced. Where the existing trademark law provides for a 3-year non-use grace period, Article 198 of the Agreement sets forth the 5-year non-use grace period.

However, Ukraine has not adopted any laws that would implement such provisions in the national legislation yet.

Consequently, Ukrainian courts are facing a dilemma in non-use cancellation actions as to what the applicable grace period really is. This raises the question of direct applicability of the EU-Ukraine Association Agreement provisions.

Recently, in a court ruling by the Commercial Court of Kyiv the judge effectively applied a 5-year non-use grace period, as provided for under the Association Agreement (Art. 198), and rejected the non-use cancellation action, which was based on the 3-year grace period, as per Ukrainian Trademark Law. The court held that the EU-Ukraine Association Agreement is a binding international agreement, thus its provisions should prevail if they differ from the rules provided by the Ukrainian law. The judge argued that, since Art. 198 provides for a different grace period, the Agreement’s provisions may be directly applicable. The ruling also emphasizes that the Association Agreement does not foresee any particular means of implementation of these provisions in the Ukrainian national law.

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