Trademark use requirement according to Ukrainian legislation
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If you have decided to register trademark in Ukraine, here are some general tips which you have to consider while achieving this point. Firstly, you are not allowed to use trademark before filling the application. Although there are cases when such usage of trademark will have significant importance. In case the temporal refusal of protection was granted, the evidence of usage will take into an account such statement of Paris Convention: «In determining whether a mark is eligible for protection, all the factual circumstances must be taken into consideration, particularly the length of time the mark has been in use».
Furthermore, trademark rights can not be reached without obtaining the registration. Due to fact that in Ukraine all rights are certified by Ukrainian trademark certification or according to the international registration.
In addition, due to lack of a column in a trademark form, there is no possibility for you to claim the first use of trademark. And when it comes to priority, the date which we should point out is the date of filling the earliest application but not the date of first use. The date of first use will be significant in case of recognition of the well-known mark.
When it comes request the evidence of use, Patent Office of Ukraine does not ask for any proof. When the provisional refusal of protection was obtained, as a rule, applicant provides specific proofs. As noted above, the proofs of usage could be the evidence of good faith of the applicant. So, applicant is interested in providing such proofs.
The presenter must provide us with the evidence when we answer on provisional refusal of protection or in court proceeding. The evidences of duration of trademark use for the revocation of well-known mark should be provided with the application to the Appellate Chamber or the court.
If the question is about the kind of proof, you are allowed to bear evidence, which in your opinion is relevant and may confirm the facts of trademark use. It can be any kind of advertisment, sale contracts, photos etc. When it comes to third party involvance , third party may request proof of use for pre-term termination of the Certificate Validity.
According to the Ukrainian Law for trademarks, in case trademark is not used in Ukraine fully or with respect to a part of goods and services listed in the certificate within three years from the date of publishing the information on granting the certificate or from other date after the publication, any person has the right to appeal to the court with a declaration for fully or partially pre-term termination of the certificate validity. So if three years from the date of publishing the information on granting the certificate or from other date after the publication were expired, third party may requests the pre-term termination of the certificate validity. For such purpose, in the claim third party provides own arguments of non-use. But it also important that in cases of non-use of trademark, defendant should provide the evidences which confirm such usage. Filing a request for third party depends on the class of goods or/and sales for which trademark should be used according to the Certificate. For example, if trademark was registered for bank services of 36 class the request to the National Bank of Ukraine can be submitted. If we talk about the some products (for instance, candies) sanitary inspection can be the requested etc.