LETTER OF PUBLIC SERVICE OF INTELLECTUAL PROPERTY OF UKRAINE

of February 1, 2013 No. 2-7/994

Concerning the right of the previous user

Public service of intellectual property of Ukraine (further - Public service) considers the appeal of the State Customs Service of Ukraine of 18.01.2013 No. 11.1/3-16.5/509 concerning the right of the previous user to signs for goods and services.

By results of consideration within competence we report the following.

According to part one of Article 500 of the Civil code of Ukraine (further GKU) any person who before date of application for trademark (sign for goods and services) or if the priority was declared, before priority date of the request for the benefit of the activities honesty used trademark in Ukraine or performed considerable and serious preparation for such use has the right to free prolongation of such use or use which was provided by the specified preparation.

According to item 4 of article 16 of the Law of Ukraine "About protection of the rights to signs for goods and services" use of sign is recognized:

drawing it on any goods for which the sign is registered packaging which contains such goods, the related sign the label, stripe, label or other subject attached to goods, storage of such goods with the specified drawing sign for the purpose of the offer for sale, the offer it for sale, sale, import (import) and export (export);

its application during the offer and provision of any service for which the sign is registered;

its application in business documentation or in advertizing and on the Internet.

According to the decision of Economic court of Kiev of 26.07.2012 in the matter of No. 501172/8237-2012, about which there is a speech in the appeal of State Customs Service:

- behind Arnest Open joint stock company the right of the previous user to signs for goods and the services "DICHLORVOS" and "DICHLORVOS NEO" and the right to prolongation of their free use (Items 2 and 3 of substantive provisions of the decision) is recognized;

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