Loi sur les marques de commerce (telle que jusqu'à la loi n° 206/1990), Chypre

The Register

3. The register of trade marks.

(1)

These shall continue to be kept at the Office of the Registrar for the purposes of this Law the record called the register of trade marks, wherein shall be entered all registered trade marks with the names, addresses and descriptions of their proprietors, notifications of assignments and transmissions, the names, addresses and descriptions of all registered users, disclaimers, conditions, limitations, and such other matters relating to registered trade marks as may be described.

(2) The register shall continue to be divided into two parts called respectively Part A and Part B.

(3)

The register shall at all convenient times be open to the inspection of the public, subject to such regulations as may be prescribed.

(4) The register shall be kept under the control and management of the Registrar.

4. Effect of registration and the action for infringement. No action for infringement of unregistered trade mark.

No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark, but nothing in this Law shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.

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5. Registration to be in respect of particular goods or services.
A trade mark must be registered in respect of particular goods or services or classes of goods or services,

and any question arising as to the class within which any goods or services fall shall be determined by the
Registrar, whose decision shall be final.

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6. Right given by registration in Part A, and infringement thereof.

(1) Subject to the provisions of this section, and of sections 9 and 10, the registration (whether before or after the commencement of this Law) of a person in Part A of the register as proprietor of a trade mark in respect of any goods or services shall if valid, give or be deemed to have given to that person the exclusive right to the use of the trade mark in relation to those goods or services and, without prejudice to the generality of the foregoing words that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion in the course of trade, in relation to any goods or services in respect of which it is registered, and in such manner as to render

the use of the mark likely to be taken either —

(a)

as being use as a trade mark, or

(b)

in a case in which the use is use upon the goods or in physical relation thereto or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade.

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(2)

The right to the use of a trade mark given by registration as aforesaid shall be subject to any conditions or limitations entered on the register, and shall not be deemed to be infringed by the use of any such mark as aforesaid in any mode, in relation to goods to be sold or otherwise traded in, in any place, in relation to goods to be exported to any market or in relation to services rendered to any place or in any other circumstances, to which, having regard to any such limitations, the registration does not extend.

(3)

The right to the use of a trade mark given by registration as aforesaid shall not be deemed to be infringed by the use of any such mark as aforesaid by any person —

(a)

in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark; or

(b)

in relation to goods adapted to form part of, or to be accessory to, other goods in relation to which the trade mark has been used without infringement of the right given as aforesaid or might for the time being be so used, if the use of the mark is reasonably necessary in order to indicate that the goods are so adapted and neither the purpose nor the effect of the use of the mark is to indicate otherwise than in accordance with the fact a connection in the course of trade between any person and the goods.

(4)

The use of a registered trade mark, being one of two or more registered trade marks that are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration as aforesaid, shall not be deemed to be an infringement of the right so given to the use of any other of those trade marks.

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7. Right given by registration in Part B and infringement thereof.

(1)

Except as provided by subsection (2) of this section, the registration (whether before or after the commencement of this Law) of a person in Part B of the register as proprietor of a trade mark in respect of any goods or services shall, if valid give or be deemed to have given to that person the like right in relation to those goods or services as if the registration had been in Part A of the register, and the provisions of section 6 shall have effect in like manner in relation to a trade mark registered in Part B of the register as they have effect in relation to a trade mark registered in Part A of the register.

(2)

In any action for infringement of the right to the use of a trade mark given by registration as aforesaid in Part B of the register, otherwise than by an act that is deemed to be an infringement by virtue of section 8, no injunction or other relief shall be granted to the plaintiff if the defendant establishes to the satisfaction of the Court that the use of which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods or services either as proprietor or as registered user to use the trade mark.

8. Infringement by breach of certain restrictions.

(1) Where, by a contract in writing made with the proprietor or a registered user of a registered trade mark, a purchaser or owner of goods enters into an obligation to the effect that he will not do, in relation to the goods, an act to which this section applies, any person who, being the owner for the time being of the goods and having notice of the obligation, does that act, or authorizes it to be done, in relation to the goods, in the course of trade or with a view to any dealing there with in the course of trade, shall be deemed thereby to infringe the right to the use of the trade mark given by the registration thereof, unless that person became the owner of the goods by purchase for money or money’s worth in good faith before receiving notice of the obligation or by virtue of a title derived through another who so became the owner thereof.

(2) The acts to which this section applies are —

(a)

the application of the trade mark upon the goods after they have suffered alteration in any manner specified in the contract as respects their state or condition, get-up or packing,

(b)

in a case in which the trade mark is upon the goods, the alteration, part removal or part obliteration thereof,

(c)

in a case in which the trade mark is upon the goods, and there is also thereon other matter, being matter indicating a connection in the course of trade between the proprietor or registered user and the goods, the removal or obliteration, whether wholly or partly, of the trade mark unless that other matter is wholly removed or obliterated,

(d)

in a case in which the trade mark is upon the goods, the application of any other trade mark to the goods;

(e)

in a case in which the trade mark is upon the goods, the addition to the goods or any other matter in writing that is likely to injure the reputation of the trade mark.

(3) In this section references in relation to any goods to the proprietor, to a registered user, and to the registration, of a trade mark shall be construed, respectively, as references to the proprietor in whose name the trade mark is registered, to a registered user who is registered, and to the registration of the trade mark, in respect of those expression “upon” includes in relation to reference to physical relation thereto.

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9. Saving for vested rights. Nothing in this Law shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in

relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date anterior—

(a)

to the use of the first mentioned trade mark in relation to those goods or services by the proprietor or a predecessor in title of his; or

(b)

to the registration of the first mentioned trade mark in respect of those goods or services

in the name of the proprietor or a predecessor in title of his, whichever is the earlier, or to object (on such use being proved) to that person being put on the register for that identical or nearly resembling trade mark in respect of those goods or services under subsection (2) of section 14.

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10. Saving for use of name, address, or description of goods or services. No registration of a trade mark shall

interfere with —

(a)

any bona fide use by a person of his own name or of the name of his place of business, or of the name, or of the name of the place of business, or of any of his predecessors in business; or

(b)

the use by any person of any bona fide description of the character or quality of his goods or services, not being a description that would be likely to be taken as importing any such reference as is mentioned in paragraph (b) of subsection (1) of section 6.

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11. Registrability and validity of registration. Distinctiveness requisite for registration in Part A.

(1) In order for a trade mark to be registrable in Part A of the register, it must contain or consist of at least one of the following essential particulars —

(a)	the name of a company, individual, or firm, represented in a special or particular manner;
(b)	the signature of the applicant for registration or some predecessor in his business;
(c)	an invented word or invented words;
(d)	a word or words having no direct reference to the character or quality of the goods or

services, and not being according to its ordinary signification a geographical name or a surname.

(e) any other distinctive mark, but a name, signature or word or words, other than such as fall within the descriptions in the foregoing paragraphs (a), (b), (c) and (d), shall not be registrable under the provisions of this paragraph except upon evidence of its distinctiveness.

(2)

For the purposes of this section “distinctive” means adapted, in relation to the goods or services in respect of which a trade mark is registered or proposed to be registered, to distinguish goods or services with which the proprietor of the trade mark is or may be connected in the course of trade from goods or services in the case of which no such connection subsists, either generally or, where the trade mark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.

(3)

In determining whether a trade mark is adapted to distinguish as aforesaid the Registrar may have regard to the extent to which —

(a)

the trade mark is inherently adapted to distinguish as aforesaid; and

(b)

by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact adapted to distinguish as aforesaid.

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12. Capability of distinguishing requisite for registration in Part B.

(1) In order for a trade mark to be registrable in Part B of the register it must be capable, in relation to the goods or services in respect of which it is registered or proposed to be registered, of distinguishing goods or services with which the proprietor of the trade mark is or may be connected in the course of trade from goods or services in the case of which no such connection subsists either generally or, where the trade mark is registered or proposed to be registered subject to limitations, in relation to use within the extent of the registration.

(2) In determining whether a trade mark is capable of distinguishing as aforesaid the Registrar may

have regard to the extent to which —

(a)

the trade mark is inherently capable of distinguishing as aforesaid; and

(b)

by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact capable of distinguishing as aforesaid.

(3) A trade mark may be registered in Part B notwithstanding any registration in Part A in the name of the same proprietor of the same trade mark or any part or parts thereof.

1. Prohibition of registration of deceptive etc. matter. It shall not be lawful to register as a trade mark or part of a trade mark any matter the use of which would, by reason of its being likely to deceive or cause confusion or otherwise, be disentitled to protection in a court of justice, or would be contrary to law or morality, or any scandalous design.
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1. Prohibition of registration of identical and resembling trade marks.

(1)

Subject to the provisions of subsection (3), no trade mark shall be registered in respect of any goods or description of goods or services which are closely related with these goods that is identical with a trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or services which are closely related with these goods, or that so nearly resembles such a trade mark as to be likely to deceive or cause confusion.

(2)

Subject to the provisions of this law, a trade mark cannot be registered by any person in respect of any services if it is essentially identical or resembles in a way that may cause confusion a trade mark which is registered or for which an application for registration has been submitted by a different person in respect of the same services, services of the same description with those services or goods which are closely related with those services.

(3)

In case of honest concurrent use, or of other special circumstances which in the opinion of the Court or the Registrar make it proper so to do, the Court or the Registrar may permit the registration of trade marks that are identical or nearly resemble each other in respect of the same goods or services or description of goods or services by more than one proprietor subject to such conditions and limitations, if any as the Court or the Registrar, as the case may be, may think it right to impose.

(4)

Where separate applications are made by different persons to be registered as proprietors respectively of trade marks that are identical or nearly resemble each other, in respect of the same goods or services or description of goods or services, the Registrar may refuse to register any of them until their rights have been determined by the Court, or have been settled by agreement in a manner approved by him or, on recourse, by the Court.

15. Registration in Part A to be conclusive as to validity after seven years.

(1)

In all legal proceedings relating to a trade mark registered in Part A of the register (including application under section 33) the original registration in Part A of the register of the trade mark shall, after the expiration of seven years from the date of that registration, be taken to be valid in all respects, unless —

(a)

that registration was obtained by fraud; or

(b)

the trade mark offends against the provisions of section 13.

(2)

Nothing is subsection (1) of section 7 shall be construed as making applicable to a trade mark, as being a trade mark registered in Part B of the register, the foregoing provisions of this section relating to a trade mark registered in Part A of the register.

16. Registration subject to disclaimer. If a trade mark —

(a)

contains any part not separately registered by the proprietor as a trade mark; or

(b)

contains matter common to the trade or otherwise of a non-distinctive character, the Registrar or the Court, in deciding whether the trade mark shall be entered or shall remain on the register, may require, as a condition of its being on the register —

(I)

that the proprietor shall disclaim any right to the exclusive use of any part of the trade mark, or to the exclusive use of all or any portion of any such matter as aforesaid, to the exclusive use of which the Registrar or the Court hold him not to be entitled; or

(II) that the proprietor shall make such other disclaimer as the Registrar or the Court may

consider necessary for the purpose of defining his rights under the registration:
Provided that no disclaimer on the register shall affect any rights of the proprietor of a trade
mark except such as arise out of the registration of the trade mark in respect of which the
disclaimer is made.

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17. Words used as name or description of an article or substance or services.

(1) The registration of a trade mark shall not be deemed to have become invalid by reason only of any use, after the date of the registration, of a word or words which the trade mark contains, or of which it consists, as the name or description of an article or substance or services:

Provided that, if it is proved either —

(a)

that there is a well-known and established use of the word or words as the name or description of the article or substance or services by a person or persons carrying on a trade therein, not being use in relation to goods or services connected in the course of trade with the proprietor or a registered user of the trade mark, or

(b)

that the article or substance or services was formerly manufactured under a patent (being a patent in force on, or granted after, the 27th day of April, 1920) or services previously rendered under a procedure secured by patent, that a period of two years or more after the cesser of the patent has elapsed, and that the word or words is or are the only practicable name or description of the article or substance or services, the provisions of the next succeeding subsection shall have effect.

(2) Where the facts mentioned in paragraph (a) or (b) of the proviso to subsection (1) are proved with respect to any word or words, then —

(a)

if the trade mark consists solely of that word or those words, the registration of the trade mark, so far as regards registration in respect of the article or substance or services in question or of any goods of the same description or of any services of the same description, shall be deemed for the purposes of section 33 to be an entry wrongly remaining on the register;

(b)

If the trade mark contains that word or those words and other matter, the Court or the Registrar, in deciding whether the trade mark shall remain on the register, so far as regards registration in respect of the article or substance or services in question and of any goods of the same description or any services of the same description, may in case of a decision in favour of its remaining on the register require as a condition thereof that the proprietor shall disclaim any right to the exclusive use in relation to that article or substance or services and any goods of the same description or any services of the same description of that word or those words, so, however, that no disclaimer on the register shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made; and

(c)

for the purposes of any other legal proceedings relating to the trade mark —

(I)

if the trade mark consists solely of that word or those words, all rights of the proprietor, by registration or otherwise, to the exclusive use of the trade mark in relation to the article or substance or services in question or to any goods of the same description or any services of the same description; or

(II) if the trade mark contains that word or those words and other matter, all such rights of

the proprietor to the exclusive use of that word or those words in such relation as aforesaid, shall be deemed to have ceased on the date at which the use mentioned in paragraph (a) of the proviso to the foregoing subsection first became well known and established, or at the expiration of the period of two years mentioned in paragraph (b) of that proviso.

(3) No word which is the commonly used and accepted name of any single chemical element or single chemical compound, as distinguished from a mixture, shall be registered as a trade mark in respect of a chemical substance or preparation, and any such registration in force at the commencement of this Law or thereafter shall, notwithstanding anything in section 15, be deemed for the purposes of section 33 to be an entry made in the register without sufficient cause, or an entry wrongly remaining on the register, as the circumstances may require:

Provided that the foregoing provisions of this subsection shall not have effect in relation to a word which is used to denote only a brand or make of the element or compound as made by the proprietor or a registered user of the trade mark, as distinguished from the element or compound as made by others, and in association with a suitable name or description open to the public use.

18. Effect of limitation as to colour, and of absence thereof. A trade mark may be limited in whole or in part to one or more specified colours, and in any such case the fact that it is so limited shall be taken into consideration by the Registrar or the Court, as the case may be, having to decide on the distinctive character of the trade mark.

If and so far as a trade mark is registered without limitation of colour, it shall be deemed to be registered for all colours.

Procedure of, and duration of, registration.

19. Application for registration.

(1)

Any person claiming to be the proprietor of a trade mark used or proposed to be used by him who is desirous of registering it must apply in writing to the Registrar in the prescribed manner for registration either in Part A or in Part B of the register.

(2)

Subject to the provisions of this Law, the Registrar may refuse the application, or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may thing right.

(3)

In the case of an application for registration of a trade mark in Part A of the register, the Registrar may, if the applicant is willing, instead of refusing the application, treat it as an application for registration in Part B and deal with the application accordingly.

(4)

In the case of a refusal or conditional acceptance, the Registrar shall, if required by the applicant, state in writing the grounds of his decision and the materials used by him in arriving thereat, and the decision shall be subject to recourse to the Court.

(5)

A recourse under this section shall be made in the prescribed manner, and on the recourse the Court shall, if required, hear the applicant and the Registrar, and shall make an order determining whether, and subject to what amendments, modifications, conditions or limitations, if any, the application is to be accepted.

(6)

Recourses under this section shall be heard on the materials stated as aforesaid by the Registrar, and no further grounds of objection to the acceptance of the application shall be allowed to be taken by the Registrar, other than those so stated as aforesaid by him, except by leave of the Court hearing the appeal. Where any further grounds of objection are taken, the applicant shall be entitled to withdraw his application without payment of costs on giving notice as prescribed.

(7)

The Registrar or the Court, as the case may be, may at any time, whether before or after acceptance, correct any error in or in connection with the application, or may permit the applicant to amend his application upon terms as the Registrar or the Court, as the case may think fit.

20. Opposition to registration.

(1) When an application for registration of a trade mark has been accepted, whether absolutely or subject to conditions or limitations, the Registrar shall, as soon may be after acceptance, cause the application as accepted to be advertised in the prescribed manner, and the advertisement shall set forth all conditions and limitations subject to which the application has been accepted:

Provided that the Registrar may cause an application to be advertised before acceptance if it is made under paragraph (e) of subsection (1) of section 11, or in another case where it appears to him that it is expedient by reason of any exceptional circumstances so to do, and where an application has been so advertised the Registrar may, if he thinks fit, advertise it again when it has been accepted but shall not be bound so to do.

(2)

Any person may, within the prescribed time from the date of the advertisement of an application, give notice to the Registrar of opposition to the registration.

(3)

The notice shall be given in writing in the prescribed manner, and shall include a statement of the grounds of opposition.

(4)

The Registrar shall send a copy of the notice to the applicant, and within the prescribed time after receipt thereof the applicant shall send to the Registrar, in the prescribed manner, a counter -statement of the ground on which he relies for his application, and, if he does not do so, he shall be deemed to have abandoned his application.

(5)

If the applicant sends such a counter-statement as aforesaid, the Registrar shall furnish a copy thereof to the persons giving notice of opposition, and shall, after hearing the parties, if so required, and considering the evidence, decide whether, and subject to what conditions or limitations if any, registration is to be permitted.

(6) The decision of the Registrar shall be subject to recourse to the Court.

(7)

A recourse under this section shall be made in the prescribed manner, and on the recourse the Court shall, if required, hear the parties and the Registrar, and shall make an order determining whether, and subject to what conditions or limitations, if any, registration is to be permitted.

(8)

On the hearing of a recourse under this section any party may, either in the manner prescribed or by special leave of the Court, bring forward further material for the consideration of the Court.

(9)

On a recourse under this section no further grounds of objection to the registration of a trade mark shall be allowed to be taken by the opponent or the Registrar, other than those so stated as aforesaid by the opponent, except by leave of the Court. Where any further grounds of objection are taken, the applicant shall be entitled to withdraw his application without payment of the costs of the opponent on giving notice as prescribed.

(10)

On a recourse under this section the Court may, after hearing the Registrar, permit the trade mark proposed to be registered to be modified in any manner not substantially affecting the identity thereof, but in any such case the trade mark as so modified shall be advertised in the prescribed manner before being registered.

(11)

If a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such a notice, or an applicant in a recourse, neither resides nor carries on business in Cyprus, the Registrar or the Court, as the case may be, may require him to give security for costs of the proceedings before them relative to the opposition or to the recourse as the case may be, and in default of such security being duly given may treat the opposition or application, or the appeal, as the case may be as abandoned.

21. Registration.

(1) When an application for registration of a trade mark in Part A or in Part B of the register has

been accepted, and either —

(a)

the application has not been opposed and the time for notice of opposition has expired; or

(b)

the application has been opposed and the registration has been decided in favour of the

applicant, the Registrar shall, unless the application has been accepted in error or unless the court otherwise directs, register the trade mark in Part A or Part B, as the case may be, and the trade mark, when registered, shall be registered as of the date of the application for registration, and that date shall be deemed for the purposes of this Law to be the date of registration.

(2)

On the registration of a trade mark the Registrar shall under his hand and seal issue to the applicant a certificate in the prescribed form of the registration thereof.

(3)

Where registration of a trade mark is not completed within twelve months from the date of the application by reason of default on the part of the applicant the Registrar may, after giving notice of the non-completion to the applicant in writing in the prescribed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice.

22. Duration and renewal of registration

(1)

The registration of a trade mark shall be for a period of seven years, but may be renewed from time to time in accordance with the provisions of this section:

Provided that, in relation to a registration as of a date before the appointed day, this subsection shall have effect with he substitution of a period of fourteen years for the said period of seven years.

(2)

The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period, renew the registration of the trade mark for a period of fourteen years from the date of expiration of the original registration or of the last renewal of registration, as

the case may be, which date is in this section referred to as “the expiration of the last registration.”

(3)

At the prescribed time before the expiration of the last registration of a trade mark, the Registrar shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration of the time prescribed in that behalf those conditions have not been duly complied with, the Registrar may remove the trade mark from the register, subject to such conditions, if any, as to its restoration to the register as may be prescribed.

(4)

Where a trade mark has been removed from the register for non-payment of the fee for renewal, it shall, nevertheless, for the purpose of any application for the registration of a trade mark during one year next after the date of the removal, be deemed to be a trade mark that is already on the register:

Provided that the foregoing provisions of this subsection shall not have effect where the Registrar is satisfied either—

(a) (b)	that there has been no bona fide trade use of the trade mark that has been removed during the two years immediately preceding its removal; or that no deception or confusion would be likely to arise from the use of the trade mark that is the subject of the application for registration by reason of any previous use of the trade mark that has been removed.
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23. Registration of parts of trade marks and of trade marks as a series.

(1)

Where the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately he may apply to register the whole and any such part as separate trade marks.

Each such separate trade mark must satisfy all the conditions of an independent trade mark and shall, subject to the provisions of subsection (3) of section 25 and subsection (2) of section 31, have all the incidents of an independent trade mark.

(2)

Where a person claiming to be the proprietor of several trade marks, in respect of the same goods or description of goods or same services or services of the same description which, while resembling each other in the material particulars thereof, yet differ in respect of —

(a)

statements of the goods or services in relation to which they are respectively used or proposed to be used; or

(b)

statements of number, price, quality or names of places; or

(c)

other matter of a non-distinctive character which does not substantially affect the identity of the trade mark; or

(d)

colour, seeks to register those trade marks, they may be registered as a series in one registration.

Assignment and Transmission

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24. Powers of, and restrictions on, assignment and transmission.

(1)

Notwithstanding any rule of law or equity to the contrary, a registered trade mark shall be, and shall be deemed always to have been, assignable and transmissible either in connection with the entire or the remainder goodwill of a business or otherwise.

(2)

A registered trade mark shall be, and shall be deemed always to have been, assignable and transmissible in respect either of all the goods or services in respect of which it is registered, or was registered, as the case may be, or of some (but not all) of those goods or services.

(3)

The provisions of the two foregoing subsections shall have effect in the case of an unregistered trade mark used in relation to any goods or services as they have effect in the case of a registered trade mark registered in respect of any goods or services, if at the time of the assignment or transmission of the unregistered trade mark it is or was used in the same business as a registered trade mark, and if it is or was assigned or transmitted at the same time and to the same person as that registered trade mark and in respect of goods or services all of which are goods or services in relation to which the unregistered trade mark it is or was used in the same business as a registered trade mark, and if it is or was assigned or transmitted at the same time and to the same person as that registered trade mark and in respect of goods or services all of which are goods or services in relation to which the unregistered trade mark is or was used in that business and in respect of which that registered trade mark is or was assigned or transmitted.

(4)

Notwithstanding anything in the foregoing subsections, a trade mark shall not be, or be deemed to have been, assignable or transmissible in a case in which as a result of an assignment or transmission there would in the circumstances subsist, or have subsisted, whether by way of registration or otherwise

exclusive rights in more than one of the person’s concerned to the use, in relation to the same goods or description of goods, of trade marks nearly resembling each other or of identical trade marks, if, having regard to the similarity of the goods or services and of the trade marks, the use of the trade marks in exercise of those rights would be, or have been, likely to deceive or cause confusion:

Provided that, where a trade mark is, or has been, assigned or transmitted in such a case as aforesaid, the assignment or transmission shall not be deemed to be, or to have been, invalid under this subsection if the exclusive rights subsisting as a result thereof in the persons concerned respectively are, or were, having regard to limitations imposed thereon, such as not to be exercisable by two or more of those persons in relation to goods to be sold or services to be rendered, or otherwise traded in, within Cyprus (otherwise than for export therefrom) or in relation to goods to be exported to the same market outside Cyprus or in relation to services to be rendered outside Cyprus.

(5)

The proprietor of a registered trade mark who proposes to assign it in respect of any goods or services in respect of which it is registered may submit to the Registrar in the prescribed manner a statement of case setting out the circumstances, and the Registrar may issue to him a certificate stating whether, having regard to the similarity of the goods or services and of the trade marks referred to in the case, the proposed assignment of the first mentioned trade mark would or would not be invalid under the last foregoing subsection, and a certificate so issued shall, subject to the provisions of this section as to recourse and unless it is shown that the certificate was obtained by fraud or misrepresentation, be conclusive as to the validity or invalidity under the last foregoing subsection of the assignment in so far as such validity or invalidity depends upon the facts set out in the case, but, as regards a certificate in favour of validity, only if application for the registration under section 27 of the title of the person becoming entitled is made within six months from the date on which the certificate is issued.

(6)

Notwithstanding anything in subsections (1), (2) and (3) of this section, a trade mark shall not, on or after the appointed day, be assignable or transmissible in a case in which as a result of an assignment or transmission thereof there would in the circumstances subsist, whether by way of registration or otherwise, an exclusive right in one of the persons concerned to the use of the trade mark limited to use in relation to goods to be sold, or otherwise traded in or services to be rendered in a place or places in Cyprus, and an exclusive right in another of those persons to the use of a trade mark nearly resembling the first mentioned trade mark or of an identical trade mark in relation to the same goods or description of goods or

services limited to use in relation to goods to be sold, or otherwise traded in or services to be rendered in

another place or other places in Cyprus: Provided that, on application in the prescribed manner by the proprietor of a trade mark who proposes to assign it, or a of a person who claims that a trade mark has been transmitted to him or to a predecessor in title of his on or after the appointed day, in any such case, the Registrar, if he is satisfied that in all the circumstances the use of the trade marks in exercise of the said rights would not be contrary to the public interest, may approve the assignment or transmission, and an assignment or transmission so approved shall not be deemed to be, or to have been, invalid under this sub-section or under subsection (4) of this section, so, however, that in the case of a registered trade mark this provision shall not have effect unless application for the registration under section 27 of the title of the person becoming entitled is made within six months from the date on which the approval is given or, in the case of a transmission, was made before that date.

(7) Where an assignment in respect of any goods or services of a trade mark that is at the time of the assignment used in a business in those goods or services is made, on or after the appointed day, otherwise than in connection with the entire or the remainder goodwill of that business, the assignment shall not take effect until the following requirements have been satisfied, that is to say, the assignee must, not later than the expiration of six months from the date on which the assignment is made or within such extended period, if any, as the Registrar may allow, apply to him for directions with respect to the advertisement of the assignment, and must advertise it in such form and manner and within such period as the Registrar may direct.

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(8) Any decision of the Registrar under this section shall be subject to recourse to the Court.

25. Certain trade marks to be associated so as to be assignable and transmissible as a whole only.

(1)

Trade marks that are registered as, or that are deemed by virtue of this Law to be, associated trade marks shall be assignable and not separately, but they shall for all other purposes be deemed to have been registered as separate trade marks.

(2)

(a)

Where a trade mark that is registered, or is the subject of an application for registration, in respect of any goods is identical with another trade mark that is registered, or is the subject of an application for registration, in the name of the same proprietor in respect of the same goods or description of goods or services which are closely related with those goods, or so nearly resembles it as to be likely to deceive or cause confusion if used by a person other than the proprietor, the Registrar may at any time require that the trade marks shall be entered on the register as associated trade marks.

(b)

Where a trade mark which is registered is the subject of an application for registration in relation to any services; and

(i)

is substantially the same with another trade mark which is registered or is the subject of an application for registration in the name of the same proprietor in respect of the same services, or services of similar description to these services or goods which are closely related with these services; or

(ii)

so closely resembles a trade mark that it is possible to deceive or cause confusion if it is used by a different person other than the proprietor, the Registrar may require at any time that the trade marks be registered in the register as associated trade marks.

(c) Any decision of the Registrar under this subsection shall be subject to recourse to the Court.

(3)

Where a trade mark and any part or parts thereof are, by virtue of subsection (1) of section 23, registered as separate trade marks in the name of the same proprietor, they shall be deemed to be, and shall be registered as, associated trade marks.

(4)

All trade marks that are, by virtue of subsection (2) of section 23, registered as a series in one registration shall be deemed to be, and shall be registered as, associated trade marks.

(5)

On application made in the prescribed manner by the registered proprietor of two or more trade marks registered as associated trade marks, the Registrar may dissolve the association as respects any of them if he is satisfied that there would be no likelihood of deception or confusion being caused if that trade mark were used by another person in relation to any of the goods or services in respect of which it is registered and may amend the register accordingly.

Any decision of the Registrar under this subsection shall be subject to recourse to the Court.

26. Power of registered proprietor to assign and give receipts. Subject to the provisions of this Law, the person for the time being entered in the register as proprietor of a trade mark shall, subject to any rights appearing from the register to be vested in any other

person, have power to assign the trade mark, and to give effectual receipts for any consideration for an assignment thereof.

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27. Registration of assignments and transmissions.

(1)

Where a person becomes entitled by assignment or transmission to a registered trade mark, he shall make application to the Registrar to register his title, and the Registrar shall, on receipt of the application and on proof of title to his satisfaction, register him as the proprietor of the trade mark in respect of the goods or services in respect of which the assignment or transmission has effect, and shall cause particulars of the assignment or transmission to be entered on the register.

(2) Any decision of the Registrar under this section shall be subject to recourse to the Court.

(3)

Except for the purposes of a recourse under this section or of an application under section 33, a document or instrument in respect of which no entry has been made in the register in accordance with the provisions of subsection (1) of this section shall not be admitted in evidence in any court in proof of the title to a trade mark unless the court otherwise directs.

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28. Use and non-use Removal from register and imposition of limitations on ground of non-use.

(1) A registered trade mark may be taken off the register in respect of any goods or services in respect of which it is registered on application by any person aggrieved to the Court or, at the option of the applicant and subject to the provisions of section 49, to the Registrar, on the ground

either —

(a)

that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods or services by him, and that there has in fact been no bona fide use of the trade mark in relation to those goods or services by any proprietor thereof for the time being up to the date one month before the date of the application;

or

(b)

that up to the date one month before the date of the application a continuous period of five years or longer elapsed during which the trade mark was a registered trade mark and during which there was no bona fide use thereof in relation to those goods or services by any proprietor thereof for the time being:

Provided that (except where the applicant has been permitted under subsection (2) of

section 14 to register an identical or nearly resembling trade mark in respect of the goods or

services in question or where the Court or the Registrar as the case may be, is of opinion that he

might properly be permitted so to register such a trade mark) the Court or the Registrar, as the

case may be, may refuse an application made under paragraph (a) or (b) of this subsection in

relation to any goods or services, if it is shown that there has been, before the relevant date or

during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor

thereof for the time being in respect of goods or services for which a trade mark is registered —

(a)

where the application is in respect of goods: goods of the same description to goods or services which are closely related to these goods; or

(b)

where the application is in respect of services: services of the same description to the services or the goods which are closely related to these services.

(2)

Where in relation to any goods in respect of which a trade mark is registered —

(a)

the matters referred to in paragraph (b) of subsection (1) are shown so far as regards non-use of the trade mark in respect of goods to be sold, or otherwise traded in, in a particular place in Cyprus (otherwise than for export from Cyprus), or in respect of goods to be exported to a particular market outside Cyprus; and

(b)

a person has been permitted under subsection (2) of section 14 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in respect of goods to be sold, or otherwise traded in, in that place (otherwise than for export from Cyprus), or in respect of goods to be exported to that market, or if the court or the Registrar, as the case may be, is of opinion that he might properly be permitted so to register such a trade mark,

on application by that person to the Court or, at the option of the applicant and subject to the provisions of section 49, to the Registrar, the Court or the Registrar, as the case may be, may impose on the registration of the first mentioned trade mark such limitations as they think proper for securing that that registration shall cease to extend to such use as last aforesaid.

(3) An applicant shall not be entitled to rely for the purposes of paragraph (b) of subsection (1), or for the purposes of subsection (2), of this section on any non-use of a trade mark that is shown to have been due to special circumstances in the trade and not to any intention not to use or to abandon the trade mark in respect of the goods or services to which the application relates.

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29. Registered users.

(1)

Subject to the provisions of this section, a person other than the proprietor of a trade mark may be registered as a registered user thereof in respect of all or any of the goods or services in respect of which it is registered and either with or without conditions or restrictions but subject to a degree of control by the registered proprietor.

The use of a trade mark by a registered user thereof in respect of goods or services with which he is connected in the course of trade and in respect of which for the time being the trade mark remains registered and he is registered as a registered user, being use such as to comply with any conditions or restrictions to which his registration is subject is in this Law referred to as “the permitted use” thereof.

(2)

The permitted use of a trade mark shall be deemed to be use by the proprietor thereof, and shall be deemed not to be use by a person other than the proprietor, for the purposes of section 28 and for any other purposes for which such use is material under this Law or otherwise.

(3)

Subject to any agreement subsisting between the parties, a registered user of a trade mark shall be entitled to call upon the proprietor thereof to take proceedings to prevent infringement thereof, and, if the proprietor refuses or neglects to do so within two months after being so called upon, the registered user may institute proceedings for infringement in his own name as if he were the proprietor, making the proprietor a defendant.

A proprietor so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

(4)

Where it is proposed that a person be registered as a registered user of a trade mark, the proprietor and the proposed registered user must apply in writing to the Registrar in the prescribed manner and must furnish him with a statutory declaration made by the proprietor, or by some person authorized to

act on his behalf and approved by the Registrar —

(a)

giving particulars of the relationship, existing or proposed, between the proprietor and the proposed registered user, including particulars showing the degree of control by the proprietor over the permitted use which their relationship will confer and whether it is a term of their relationship that the proposed registered user shall be the sole registered user or that there shall be any other restriction as to persons for whose registration as registered users application may be made;

(b) stating the goods or services in respect of which registration is proposed;

(c)

stating any conditions or restrictions proposed with respect to the characteristics of the goods, or services to the mode or place of permitted use, or to any other matter; and

(d) stating whether the permitted use is to be for a period or without limit of period, and, if

for a period, the duration thereof,
and with such further documents, information or evidence as may be required under the rules or by
the Registrar.

(5)

When the requirements of the last foregoing subsection have been complied with, if the Registrar, after considering the information furnished to him under that subsection, is satisfied that in all the circumstances the use of the trade mark in relation to the proposed goods or services or any of them by the proposed registered user subject to any conditions or restrictions which the Registrar thinks proper would not be contrary to the public interest, the Registrar may register the proposed registered user as a registered user in respect of the goods or services as to which he is so satisfied subject as aforesaid.

(6)

The Registrar shall refuse an application under the foregoing provisions of this section if it appears to him that the grant thereof would tend to facilitate trafficking in a trade mark.

(7)

The Registrar shall, if so required by an applicant, take steps for securing that information given for the purposes of an application under the foregoing provisions of this section (other than matter entered in the register) is not disclosed to rivals in trade.

(8)	Without prejudice to the provisions of section 33, the registration of a person as a registered
user —
	(a)	may be varied by the Registrar as regards the goods or services in respect of which, or

any conditions or restrictions subject to which, it has effect, on the application in writing in the prescribed manner of the registered proprietor of the trade mark to which the registration relates;

(b)

may be cancelled by the Registrar on the application in writing in the prescribed manner of the registered proprietor or of the registered user or of any other registered user of the trade mark; or

(c)

may be cancelled by the Registrar on the application in writing in the prescribed manner of any person on any of the following grounds, that is to say:

(i)

that the registered user has used the trade mark otherwise than by way of the permitted use, or in such a way as to cause, or to be likely to cause, deception or confusion;

(ii)

that the proprietor or the registered user misrepresented, or failed to disclose, some fact material to the application for, the registration, or that the circumstances have materially changed since the date of the registration;

(iii) that the registration ought not to have been effected having regard to rights vested in the applicant by virtue of a contract in the performance of which he is interested.

(9)

Provision shall be made by the rules for the notification of the registration of a person as a registered user to any other registered user of the trade mark and for the notification of an application under the last foregoing subsection to the registered proprietor and each registered user (not being the applicant) of the trade mark, and for giving to the applicant on such an application and to all persons to whom such an application is notified and who intervene in the proceedings in accordance with the rules, an opportunity of being heard.

(10)

The Registrar may at any time cancel the registration of a person as a registered user of a trade mark in respect of any goods or services in respect of which the trade mark is no longer registered.

(11)

Any decision of the Registrar under the foregoing provisions of this section shall be subject to recourse to the Court.

(12)

Nothing in this section shall confer on a registered user of a trade mark any assignable or transmissible right to the use thereof.

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30. Proposed use of trade mark by corporation to be constituted, etc.

(1) No application for the registration of a trade mark in respect of any goods or services shall be refused, nor shall permission for such registration be withheld, on the ground only that it appears that the

applicant does not use or propose to use the trade mark —

(a)

If the Registrar or the Court, as the case may be, is satisfied that a body corporate is about to be constituted and that the applicant intends to assign the trade mark to the corporation with a view to the use thereof in relation to those goods or services by the corporation; or

(b)

If the application is accompanied by an application for the registration of a person as a registered user of the trade mark, and the Registrar or the Court, as the case may be, is satisfied that the proprietor intends it to be used by that person in relation to those goods or services and the Registrar or the Court, as the case may be, is also satisfied that that person will be registered as a registered user thereof immediately after the registration of the trade mark.

(2)

The provisions of section 28 shall have effect, in relation to a trade mark registered under the power conferred by subsection (1), as if for the reference, in paragraph (a) of subsection (1) of that section, to intention on the part of an applicant for registration that a trade mark should be used by him there were substituted a reference to intention on his part that it should be used by the corporation or registered user concerned.

(3)

The Registrar or the Court, as the case may be, may, as a condition of the exercise of the power conferred by subsection (1) of this section in favour of an applicant who relies on intention to assign to a corporation as aforesaid, require him to give security for the costs of any proceedings before the Registrar or the Court, as the case may be relative to any opposition or recourse, and in default of such security being duly given may treat the application as abandoned.

(4)

Where a trade mark is registered in respect of any goods or services under the power conferred by subsection (1) in the name of an applicant who relies on intention to assign to a corporation as aforesaid, then, unless within such period as may be prescribed, or within such further period not exceeding six months as the Registrar may on application being made to him in the prescribed manner allow, the corporation has been registered as the proprietor of the trade mark in respect of those goods or services, the registration shall cease to have effect in respect thereof at the expiration of that period, and the Registrar shall amend the register accordingly.

31. Use of one of associated or substantially identical trade marks equivalent to use of another.

(1)

Where under the provisions of this Law use of a registered trade mark is required to be proved for any purpose, the Registrar or the Court, as the case may be, may, if and so far as they think right, accept use of an associated registered trade mark, or of the trade mark with additions or alterations not substantially affecting its identity, as an equivalent for the use required to be proved.

(2)

The use of the whole of a registered trade mark shall for the purposes of this Law be deemed to be also a use of any registered trade mark, being a part thereof, registered in the name of the same proprietor by virtue of subsection (1) of section 23.

32. Use of trade mark for export trade. The application in Cyprus of a trade mark to goods to be exported from Cyprus, and any other act done in Cyprus in relation to goods to be so exported which, if done in relation to goods to be sold or otherwise traded in within Cyprus, would constitute use of a trade mark therein, shall be deemed to

constitute use of the trade mark in relation to those goods for any purpose for which such use is material under this Law or otherwise.

Rectification and correction of the register

33. General power to rectify entries in register.

(1)

Any person aggrieved by the non-insertion in or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to the Court or, at the option of the applicant and subject to the provisions of section 49, to the Registrar, and the Court or the Registrar, as the case may be, may make such order for making, expunging or varying the entry as they may think fit.

(2)

The Court or the Registrar, as the case may be, may in any proceeding under this section decide any question that it may be necessary or expedient to decide in connection with the rectification of the register.

(3)

In case of fraud in the registration, assignment or transmission of a registered trade mark, the Registrar may himself apply to the Court under the provisions of this section.

(4)

Any order of the Court rectifying the register shall direct that notice of the rectification shall be served in the prescribed manner on the Registrar, and the Registrar shall on receipt of the notice rectify the register accordingly.

(5)

The power to rectify the register conferred by this section shall include power to remove a registration in Part A of the register, to Part B.

34. Power to expunge or vary registration for breach of condition. On application by any person aggrieved to the Court, or, at the option of the applicant and subject to the provision of section 49, to the Registrar, or on application by the Registrar to the Court, the Court or the Registrar, as the case may be, may make such order as they may think fit for expunging or varying the

registration of a trade mark on the ground of any contravention of, or failure to observe, a condition entered on the register in relation thereto.

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35. Correction of register.

(1)

The Registrar may, on request made in the prescribed manner by the registered proprietor —

(a)

correct any error in the name, address or description of the registered proprietor of a trade mark;

(b)

enter any change in the name, address or description of the person who is registered as proprietor of a trade mark;

(c) cancel the entry of a trade mark on the register;

(d)

strike out any goods or services or classes of goods from those in respect of which a trade mark is registered; or

(e)

enter a disclaimer or memorandum relating to a trade mark which does not in any way extend the rights given by the existing registration of the trade mark.

(2) The Registrar may, on request made in the prescribed manner by a registered user of a trade mark, correct any error, or enter any change, in the name, address or description of the register user.

(3) Any decision of the Registrar under this section shall be subject to recourse to the Court.

36. Alteration of registered trade mark.

(1)

The registered proprietor of a trade mark may apply in the prescribed manner to the Registrar for leave to add to or alter the trade mark in any manner not substantially affecting the identity thereof, and the Registrar may refuse leave or may grant it on such terms and subject to such limitations as he may think fit.

(2)

The Registrar may cause an application under this section to be advertised in the prescribed manner in any case where it appears to him that it is expedient so to do, and where he does so, if within the prescribed time from the date of the advertisement any person gives notice to the Registrar in the prescribed

manner of opposition to the application, the Registrar shall, after hearing the parties if so required, decide the matter.

(3) Any decision of the Registrar under this section shall be subject to recourse to the Court.

(4) Where leave as aforesaid is granted, the trade mark as altered shall be advertised in the prescribed manner, unless it has already been advertised, in the form to which it has been altered, in an advertisement under subsection (2) of this section.

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37. Adaptation of entries in register to amended or substituted classification of goods or services.

(1)

The Council of Ministers may from time to time make such rules, prescribe such forms and generally do such things as they think expedient, for empowering the Registrar to amend the register, whether by making or expunging or varying entries therein, so far as may be requisite for the purpose of adapting the designation therein of the goods or services or classes of goods or classes of services in respect of which trade marks are registered to any amended or substituted classification that may be prescribed.

(2)

The Registrar shall not, in exercise of any power conferred on him for the purpose aforesaid, make any amendment of the register that would have the effect of adding any goods or services or classes of goods or classes of services to those in respect of which a trade mark is registered (whether in one or more classes) immediately before the amendment is to be made, or of antedating the registration of a trade mark in respect of any goods or services;

Provided that this subsection shall not have effect in relation to goods or services as to which the Registrar is satisfied that compliance with this subsection in relation thereto would involve undue complexity and that the addition or antedating, as the case may be would not affect any substantial quantity of goods or services and would not substantially prejudice the rights of any person.

(3)

A proposal for the amendment of the register for the purpose aforesaid shall be notified to the registered proprietor of the trade mark affected, shall be subject to recourse by the registered proprietor to the Court, shall be advertised with any modifications, and may be opposed before the Registrar by any person aggrieved on the ground that the proposed amendment contravenes the provisions of the last foregoing subsection, and the decision of the Registrar on any such opposition shall be subject to recourse to the Court.

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37A. Certifying Trade Marks – First Schedule.

(1) A mark capable of distinguishing in the trade of goods or services which are being certified by any person in relation to quality, accuracy or other characteristic including, in the case of goods, the origin, material, mode of manufacture, from goods or services which are not being so certified, may be registered as a certified trade mark in Part A of the Register in relation to these goods or services in the name of this person as proprietor:

Provided that no such mark is being so registered in the name of a person who is engaged in the trade of goods of the certified kind or in the trade to render services of the certified kind.

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(2)

In determining whether a mark is capable of registering under subsection (1) of the present section the Registrar may have regard to the extent to which —

(a) the mark is inherently capable of distinguishing as aforesaid; and (b) by reason of the use of the mark or of any other circumstances, the mark is in fact capable of distinguishing as aforesaid.

(3)

Subject to the provisions of sections 9 and 10 and subsections (5) and (6) of the present section, the registration of a person as proprietor of a certifying trade mark in respect of any goods or services shall,

if valid, give to that person the exclusive right to the use of the trade mark in relation to these goods or services.

(4) This right shall be deemed as infringed by any person who, not being the proprietor of the trade mark or a person authorised by him under the regulations in that behalf and not using it in accordance with the said regulations uses —

(a) a mark identical with it; or

(b) a mark so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods or services in respect of which it is registered. For the purposes of the present subsection the use of the mark is considered as being in breach of the

right protected by subsection (4) if it is practised in such a manner so that the use of the mark — (i)is likely to be taken either as being use as a trade mark; or

(ii) in a case in which the use is use upon the goods or services or in physical relation thereto or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or by his authorisation under the relevant regulations to use the trade mark or to goods or services certified by the proprietor.

(5)

The right to the use of a certifying trade mark given by registration as aforesaid, shall be subject to any conditions or limitations entered on the register.

(6)

Where a certifying trade mark being one of two or more registered certifying trade marks that are identical or nearly resemble each other, the use of any of these trade marks in exercise of the right to the use of this trade mark given by registration shall not be deemed to be an infringement of the right so given to the use of any other of these trade marks.

(7)

Regulations approved by the Registrar shall be deposited at the Registrar’s Office in respect of every trade mark registered under this section which shall govern its use thereof, and shall include provisions as to the cases in which the proprietor is to certify goods or services and authorise the use of the trade mark, and including provisions conferring a right to appeal to the Registrar against any refusal of the proprietor to certify goods or services or to authorise the use of the trade mark in accordance with the regulations. Regulations so deposited shall be open to inspection in like manner as the register.

(8)

A certifying trade mark shall not be assignable or transmissible otherwise than with the consent of the Registrar.

(9) First Schedule.

The provisions of the First Schedule of the present Law shall have effect with respect to the registration of a mark under this section and to marks so registered.

Rules and Fees

38. Power of Council of Ministers to make Rules.

(1)

The Council of Ministers may from time to time make such Rules, prescribe such forms and generally do such things as they think expedient —

(a)

for regulating the practice under this Law, including the service of documents;

(b)

for classifying goods for the purposes of registration of trade marks;

(c)

for making or requiring duplicates of trade marks and other documents;

(d)

for securing and regulating the publishing and selling or distributing, in such manner as the Registrar thinks fit, of copies of trade marks and other documents;

(e)

generally, for regulating the business of the Office of the Registrar in relation to trade marks and all things by this Law placed under the direction or control of the Registrar.

(2)

Rules made under this Law shall, while in force, be of the same effect as if they were contained in this Law.

(3)

Any Rules made in pursuance of this section shall be published in the official gazette of the Republic of Cyprus.

39. Fees.

There shall be paid in respect of applications and registration and other matters under this Law such fees as may be prescribed by the Council of Ministers.

Powers and duties of Registrar

40. Preliminary advice, by Registrar as to distinctiveness.

(1)

The power to give advice to a person who proposes to apply for the registration of a trade mark in Part A or Part B of the register, as to whether the trade mark appears to the Registrar prima facie to be inherently adapted to distinguish, or capable of distinguishing, as the case may be, shall be a function of the Registrar under this Law.

(2)

Any such person who is desirous of obtaining such advice must make application to the Registrar therefor in the prescribed manner.

(3)

If on an application for the registration of a trade mark as to which the Registrar has given advice as aforesaid in the affirmative, made within three months after the advice is given, the Registrar, after further investigation or consideration, gives notice to the applicant of objection on the ground that the trade mark is not adapted to distinguish, or capable of distinguishing, as the case may be, the applicant shall be entitled, on giving notice of withdrawal of the application within the prescribed period, to have repaid to him any fee paid on the filing of the application.

1. Hearing before exercise of Registrar’s discretion. Where any discretionary or other power is given to the Registrar by this Law or the rules, he shall not exercise that power adversely to the applicant for registration or the registered proprietor of the trade mark
2. in question without (if duly required so to do within the prescribed time) giving to the applicant or registered proprietor an opportunity of being heard.
1. Power of Registrar to award costs. In all proceedings before the Registrar under this Law, the Registrar shall have power to award to any party such costs as he may consider reasonable, and to direct how and by what parties they are to be paid,
2. and any such order may, by leave of a judge of a District Court, be enforced in the same manner as a judgment or order of that Court to the same effect.
1. Annual reports of Registrar. The Registrar shall issue an annual report on the execution by him of this Law.

Legal proceedings and recourses.

1. Registration to be prima facie evidence of validity. In all legal proceedings relating to a registered trade mark (including applications under section 33) the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the
2. validity of the original registration of the trade mark and of all subsequent assignments and transmissions thereof.
1. Certificate of validity. In any legal proceeding in which the validity of the registration of a registered trade mark comes into question and is decided in favour of the proprietor of the trade mark, the Court may certify to that effect, and if it so certifies then in any subsequent legal proceeding in which the validity of the registration comes into

question the proprietor of the trade mark on obtaining a final order or judgment in his favour shall have his full costs, charges and expenses as between advocate and client, unless in the subsequent proceeding the Court certifies that he ought not to have them. Costs of Registrar in proceedings before Court, and payment of costs by Registrar.

1. In all proceedings before the Court under this Law the costs of the Registrar shall be in the discretion of the Court, but the Registrar shall not be ordered to pay the costs of any other of the parties.
1. Trade usage etc. to be considered. In any action or proceeding relating to a trade mark or trade name, the Court or the Registrar, as the
2. case may be, shall admit evidence of the usages of the trade concerned and of any relevant trade mark or trade name or get-up legitimately used by other persons.
2. Registrar’s appearance in proceedings involving rectification.

(1)

In any legal proceeding in which the relief sought includes alteration or rectification of the register, the Registrar shall have the right to appear and be heard, and shall appear if so directed by the Court.

(2)

Unless otherwise directed by the Court, the Registrar in lieu of appearing and being heard may submit to the Court a statement in writing signed by him, giving particulars of the proceedings before him in relation to the matter in issue or of the grounds of any decision given by him affecting it or of the practice of his Office in like cases of such other matters relevant to the issues, and within his knowledge as Registrar, as he thinks fit, and the statement shall be deemed to form part of the evidence in the proceeding.

49. Procedure in cases of option to apply to Court or Registrar.

Where under any of the foregoing provisions of this Law an applicant has an option to make an application either to the Court or to the Registrar —

(a)

If an action concerning the trade mark in question is pending, the application must be made to the Court;

(b)

If in any other case the application is made to the Registrar, he may, at any stage of the proceedings, refer the application to the Court, as he may, after hearing the parties, determine the question between them subject to recourse to the Court.

Evidence

1. Mode of giving evidence. In any proceeding under this Law before the Registrar, the evidence shall be given by affidavit in the absence of directions to the contrary, but, in any case in which he thinks it right so to do, the Registrar may take evidence viva voce in lieu of or in addition to evidence by affidavit. Any such affidavit may in the case of recourse be used before the Court, but if so used shall have all the incidents and consequences of evidence by affidavit.
2. In case any part of the evidence is taken viva voce, the Registrar shall, in respect of requiring the attendance of witnesses and taking evidence on oath, be in the same position in all respects as the Court.
1. Evidence of entries in register.

(1)

A printed or written copy of any entry in the register, purporting to be certified by and under the hand of the Registrar and sealed with the seal of his Office, shall be admitted in evidence in all courts, and in all proceedings, without further proof or production of the original.

(2)

Any person requiring such a certified copy as aforesaid shall be entitled to obtain it on payment of the prescribed fee.

52. Evidence of things done by Registrar. A certificate purporting to be under the hand of the Registrar as to any entry, matter or thing that he is

authorized by this Law or the rules to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or not done.

Offences.

53. Falsification of entries in register.

If any person makes or causes to be made a false entry in the register, or a writing falsely purporting to be a copy of an entry in the register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, he shall be guilty of an offence and shall on conviction be liable to imprisonment not exceeding one year or to a fine not exceeding one thousand pounds or to both such imprisonment and fine.

3(1) of 166/87

23 of N.206/90

54. Fine for falsely representing a trade mark as registered.

(1)

Any person who makes a representation —

(a)

with respect to a mark not being a registered trade mark, to the effect that it is a registered trade mark; or

(b)

with respect to a part of a registered trade mark not being a part separately registered as a trade, to the effect that it is so registered; or

(c)

to the effect that a registered trade mark is registered in respect of any goods or services in respect of which it is not registered; or

(d)

to the effect that the registration of a trade mark gives an exclusive right to the use thereof in any circumstances in which, having regard to limitations entered on the register, the registration does not give that right, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred twenty five pounds.

4 of 166/87

(2) For the purposes of this section, the use in Cyprus in relation to a trade mark of the word “registered”, or of any other word referring whether expressly or impliedly to registration, shall be deemed to import a reference to registration in the register, except —

(a)

where that word is used in physical association with other words delineated in characters at least as large as those in which that word is delineated and indicating that the reference is to registration as a trade mark under the law of a country outside Cyprus, being a country under the law of which the registration referred to is in fact in force;

(b)

where that word (being a word other than the word “registered”) is of itself such as to indicate that the reference is to such registration as last aforesaid; or

(c)

where that word is used in relation to a mark registered as a trade mark under the law of a country outside Cyprus and in relation to goods or services to be exported to that country.

Miscellaneous.

24 of N.206/90

55. Change of form of trade connection not to be deemed to cause deception. The use of a registered trade mark in relation to goods or services between which and the person using it any form of connection in the course of trade subsists shall not be deemed to be likely to cause deception or confusion on the ground only that the trade mark has been, or is, used in relation to goods or services

between which and that person or a predecessor in title of his a different form of connection in the course of trade subsisted or subsists.

25 of N.206/90

56. Jointly owned trade marks. Where the relations between two or more persons interested in a trade mark are such that no one of

them is entitled as between himself and the other or others of them to use it except —

(a)

on behalf of both or all of them; or

(b)

in relation to an article or services with which both or all of them are connected in the

course of trade, those persons may be registered as joint proprietors of the trade mark, and this Law shall have effect in relation to any rights to the use of the trade mark vested in those persons as if those rights had been vested in a single person.

Subject as aforesaid, nothing in this Law shall authorise the registration of two or more persons who use a trade mark independently, or propose so to use it, as joint proprietors thereof.

57. Trusts and equities.

(1)

There shall not be entered in the register any notice of any trust express, implied or constructive, nor shall any such notice be receivable by the Registrar.

(2)

Subject to the provisions of this Law, equities in respect of a trade mark may be enforced in like manner as in respect of any other personal property.

26 of N.206/90

1. Recognition of agents. Where by this Law any act has to be done by or to any person in connection with a trade mark or proposed trade mark or any procedure relating thereto, the act may under and in accordance with the rules or
2. in particular cases by special leave of the Court, be done by or to an agent of that person duly authorized in the prescribed manner notwithstanding any other provision in any other legislation.
1. Transitional provisions. Schedule.
2. The transitional provisions set out in the second Schedule to this Law shall have effect with respect to the matters therein mentioned respectively.
1. Savings.

(1)

Nothing in this Law shall affect any Order, Rule, Regulation or requirement made, table of fees or certificate issued, notice, decision, determination, direction or approval given, application made, or thing done, under the Law hereby repealed, and every such Order, Rule, Regulation, requirement, table of fees, certificate, notice, decision, determination, direction, approval, application or thing shall, if in force at the commencement of this Law, continue in force and shall, so far as it could have been made, issued, given or done under this Law, have effect as if made, issued, given or done under the corresponding provisions of this Law.

(2)

Any document referring to the Law repealed by this Law shall be construed as referring to the corresponding provisions of this Law.

Cap. 1.

(3)

Nothing in this section shall be taken to prejudice the provisions of section 11 of the Interpretation Law.

“FIRST SCHEDULE” (Section 37A)

Certifying Trade Marks

1.—

(1)

The application for the registration of a mark under section 37A must be submitted to the Registrar in writing in the prescribed manner by the person who intends to be registered as proprietor of it.

(2)

The provisions of subsection (2) and subsections (4) to (7) of section 19 shall be applicable in case of application under subsection (1) of the said section 19.

(3)

The Registrar during his examination under the said provisions, of an application under the said section 37A, takes into account similar criteria so far as these are related to an application which was an application under section 19 and every other criteria on relevant to applications under the said section 37A, the expediency being included that the certifying trade mark contains an indication that it is of such a nature.

(4)

A person who applies for the registration of a mark under the said section 37A submits to the Registrar, along with the application, regulations governing its use, so that he shall be able to examine the following matters:

(a) whether the applicant is a right person to certify the goods or services in relation to which the mark is to be registered;

(b)

whether the regulations are satisfactory; and

(c)

whether under all the circumstances the registration applied for would be to the public

interest.
The Registrar may, after he examines the application:

(i) reject the application, or

(ii) accept this and approve the regulations, either without amendment and without conditions, or under such conditions or limitations or any amendments or alterations of the application or of the regulations, which he considers necessary, having in mind any of the aforesaid matters.

1. The Registrar shall, as soon as may be after acceptance, cause the application as accepted to be published in the prescribed manner and the provisions of subsections (2) to (11) of section 20 are applied in relation to the registration of the mark as if the application was an application under section 19.
2. The deposited regulations in respect of a certifying trade mark may be amended on the application of a registered proprietor with the consent of the Registrar and in such a case the provisions of paragraph 2 of the present schedule are applied mutatis-mutandis.

4.—

(1) The Registrar may, on application, in the prescribed manner by any person affected, issue such an order, as he may think fit for the deletion or amendment of any entry in the register, which is referred to a certifying trade mark or for the amendment of the deposited regulations for the following reasons:

(a)

that the proprietor is not the right person, any more, in case of any goods or services in respect of which the certifying trade mark has been registered, to certify such goods or services.

(b)

that the proprietor omitted to observe a provision of the deposited regulations, which he was obliged to observe;

	(c)	that it is no longer in the public interest for the certifying trade mark to remain registered,
or
	(d)	that it is necessary in the public interest that the regulations shall be amended, if the mark

is to remain registered.

(2) The Registrar is to rectify the register and the deposited regulations in such a manner, as it would be necessary for an order published under the preceding subparagraph to be applied.

5. The following provisions of the present Law are not applicable in respect of a certifying trade mark, namely sections 6, 8, 11, 19 and 20 (except as are expressly applicable by the present Schedule), the subsections (4) to (8) of Section 24, sections 28 to 30, section 55 and all the provisions the application of which is limited, by their wording, to registration in Part B of the register.

SECOND SCHEDULE. (Section 59)

ASSIGNMENTS AND TRANSMISSIONS (BEFORE APPOINTED DAY)
GIVING EXCLUSIVE RIGHTS IN DIFFERENT PLACES IN CYPRUS.

1.—

(1) The validity of an assignment or transmission of a trade mark effected or claimed to have been effected before the appointed day, in any such case as is mentioned in subsection (6) of section 24 of this Law, shall be determined as if the provisions contained in subsections (1) to (5) of that section had not been enacted;

Provided that, on application made in the prescribed manner within two years from the commencement of this Law, by a person who claims that an assignment or transmission of a registered trade mark to him or to a predecessor in title of his has been so effected, the Registrar shall have the like jurisdiction as under the proviso to subsection (6) of section 24 of this Law, and an assignment or transmission approved by him shall not be deemed to have been invalid on the ground of the subsistence of such rights as are mentioned in the said subsection (6) or the on the ground that the assignment or transmission was effected otherwise than in connection with the entire or the remainder goodwill of a business or was effected in respect of some (but not all) of the goods or services in respect of which the trade mark was registered, if application for the registration under section 27 of this Law of the title of the person becoming entitled is made within six months from the date on which the approval is given, or was made before that date.

(2) Any decision of the Registrar under this paragraph shall be subject to recourse to the Court.

SAVING AS TO RETROSPECTIVE PROVISIONS RELATING TO
ASSIGNMENTS AND TRANSMISSIONS,

2. The retrospective provisions contained in section 24 of this Law and in the last foregoing paragraph, shall have effect without prejudice to any determination of the Registrar or the Court that was made before the appointed day, or to the determination of any appeal from a determination so made or to any title acquired for valuable consideration before the appointed day.

ASSOCIATION OF TRADE MARKS ASSIGNABLE OR
TRANSMISSIBLE AS A WHOLE ONLY

3. Where immediately before the appointed day a trade mark was registered in Part B of the register subject to a condition rendering it assignable or transmissible only as a whole with another trade mark registered in the name of the same proprietor or with two or more other trade marks so registered, and not separately, the trade marks shall be deemed to be associated trade marks, and the entries in the register relating thereto may be amended accordingly.

PREVIOUS USE OF A TRADE MARK BY PERSON BECOMING
REGISTERED USER ON APPLICATION MADE
WITHIN ONE YEAR OF APPOINTED DAY.

4. Where a person is registered as a registered user of a trade mark on an application made within one year from the commencement of this Law, subsection (2) of section 29 of this Law shall have effect in relation to any previous use (whether before or after the commencement of this Law) of the trade mark by that person, being use in relation to the goods in respect of which he is registered and, where he is registered subject to conditions or restrictions, being use such as to comply substantially therewith, as if such previous use had been permitted use.

USE OF TRADE MARK FOR EXPORT TRADE
BEFORE APPOINTED DAY.

5. Section 32 of this Law shall be deemed to have had effect in relation to an act done before the appointed day as it has effect in relation to an act done after the commencement of this Law, without prejudice, however, to any determination of the Registrar or the Court which was made before the appointed day, or to the determination of any appeal from a determination so made.