Hypholoma
2010-07-27 17:30:00
Interview of Deputy Head of Intellectual Property Agency of Armenia
Andranik Khachatryan with ArmInfo News Agency
A successfully found similarity and a «fair» label turn into a fare
dodger who «leaves» due to its eminent originals. A space for
invention is so wide here that lawmakers hardly need to compete with
it. It is much more practical to envisage general provisions, and be
guided by experience and common sense when analyzing each specific
case. The Laws «On Trademarks» and «On Geographic Marking», passed by
the parliament in final reading at late April and brought into force
from July 1, have been built just on such a logic. Details are
presented by one of the authors of the draft law.
The law withholds registration of the brands which distort cultural
values. How will this distortion be determined? How much strongly one
should judge?
There is a point in the law saying the trademarks which distort
historical, cultural or spiritual values must not be registered. No
questions arise if, for example, «Czar Artashes» is registered for
Armenian brandy (as a trademark) or other high-quality and elite
goods. However, we cannot permit such a name for napkins or household
products. For example, the name of a scientist Victor Hambardzumyan
may be born by educational and scientific establishments but not a
clothing shop unless his heirs set the seal on it. A number of such
examples are made in a subordinate act we were guided by earlier (a
new one has not been yet approved). Of course, it does not contain
universal listing, however, general approaches have been fixed there.
For example, we had discussions with the Mother See of Holy Echmiadzin
several years ago regarding advertising spots where shashlik was
prepared against a temple. Of course, such spots should be recognized
inadmissible. In practice, we receive such complaints from concerned
parties and try to improve the legal base on their ground.
How does the law determine what name of wine or brandy is permitted
for common use and what not?
If someone brings us «Bordeaux» trademark for a wine produced far
beyond Bordeaux, we shall not register it of course. The matter with
Armenian brandy is more difficult. When we talk to French specialists
about it, our arguments come to the following: a word combination
«Armenian brandy» means an alcohol beverage made on a technology of
(French) brandy in the territory of Armenia, according to the approved
standard. The name «brandy» in the European market has been registered
as a name of the goods origin, while a drink under such a name may not
be exported there from Armenia. Use of this name in markets of Russia
and other CIS countries is not yet prohibited. We think that brandy,
being a geographic name, started meaning all the brandy-similar
drinks, including Armenian brandy, due to its frequent use. As for the
recently accepted «Arbun» brand, it has been developed for brandy
sorts. The Law «On Alcohol Beverages from Grape Stock» determines
brandy as a beverage with up to 40%-content of imported grape alcohol.
The name «Arbun» is proposed to introduce just for this group, i.e.
for Armenian brandy made of grape alcohol.
However, «brandy» for Europeans is intimately connected with a drink
from France.
We think that an element «Armenian» in the «Armenian brandy» trademark
serves quite a sufficient identifying element which differs it from
French brandy. They in the United States also think that a word
«Armenian» is sufficient to save a consumer from fallacy. On the other
hand, the «Armenian brandy» trademark is not allowed in the European
countries. That’s why, when in 1970, they began to talk about export
of the Soviet brandy abroad, they started to decide under what
trademark it should be exported. A quick decision was found for
Georgian brandy – «Gruzignak». A similar formation «Armegnak» for
Armenian brandy turned out to be inapplicable because of the
similarity to Armagnak. There were long discussions in both Yerevan
and Moscow and, finally a decision was made to put a word «Ararat» on
brandy, and below – a word Brandy, and so the first export batches of
Armenian brandy were exported.
The Law «On Geographical Indications» prohibits using another’s
geographical name with mimicing marks of a «type», «sort», etc. What
does it imply for domestic manufacturers of «emmentaler sort» or «feta
sort» cheese?
The situation is different with different kinds of cheese: somewhere,
geographical names are preserved and somewhere not. One who seriously
goes deep into this issue will clarify that the majority of the
well-known names of sorts in Armenia have been registered. Naturally,
the law prohibits to put another name on a product, even with marking
a «type», «sort», etc. This concerns not cheese manufacturers only,
although, currently the Armenian legislation does not oblige using
just registered trademarks.
As for Armenian cheese, «Lori» and «Yeghegnadzor» may be written on
cheese, as these names indicate the type of merchandise irrespective
of the production place. Cheese trademarks have not been yet
registered here, however, I think that this market should be regulated
sooner or later. Anyhow, serious economic entities strive to work
under their own brands. As for «Lori» or «Yeghegnadzor», these names
have no rightholders. If cheesemakers of these regions want to secure
these names to them, they will have to prove that quality and
reputation of their cheese have been greatly conditioned just by their
geographic origin and manufacture in these regions and nowhere else,
and/or by human factor.
Do Armenian entrepreneurs have legal reasoning to use the
world-renowned Soviet brands, in particular, chocolate sweets?
This topic has already been discussed inside out over the last several
months. I shall try to present my vision as a man engaged in
trademarks for over thirteen years. The marks of sweets, produced in
the USSR, are currently erroneously perceived as Russian. However,
sweets under the same names: «Belochka», «Krasny Mak», etc. were
produced in other Soviet republics as well, including the Armenian
SSR, where «Karakum» and «Belochka» were also produced, moreover, with
marking also in Armenian. The decision on their production and sales
was made by Ministry of Food Industry of the USSR. The key function of
a trademark is to differ the goods of a producer A from homotypic
goods of a producer B. As it is known, consumer differentiation of
goods was not practiced in the Soviet time, a consumer bought not what
was proposed by different economic entities, but what was put up in
accordance with the approved State Plan of the USSR. After the USSR
collapse, a number of Russian confectionery plants started to register
these names as brands. Moreover, in early 1990s, the famous «Krasny
Oktyabr» submitted these trademarks to the International Bureau of the
World Intellectual Property Organization (WIPO) in Geneva for
International registration. The plant obtained an exclusive right for
use of these brands in Russia and a number of other states of the
former Soviet Union, where Armenia was not indicated. Each country
started registering these names with appearance of legislations in the
independent republics of the former USSR. Local producers in Belarus
and Ukraine secured these names to them. Part of the names in
Turkmenistan and Kazakhstan stuck to Russian producers, and another
part – to local ones. In Armenia, these names were submitted for
registration by our «Grand Candy». It registered these names, and some
time later, «Krasny Oktyabr» applied to WIPO for recognition of the
rights for these brands in Armenia. Obviously, these brands would not
remain abandoned in any case. For example, these brands in Belarus and
Ukraine were registered by local producers, therefore, «Belochka», for
example, cannot be imported by anyone, as local producers have the law
on their side. Why not to have the same here?
The law prohibits registration of goods which can mislead a consumer
as to the real origin of goods, even if a real country and producer is
indicated on the label. In view of this, is it possible to produce
«Ivanych» vodka or «Leipzig» beer in Armenia?
A deceptive name is still half a trouble as compared to visual
elements which have a stronger identifying role. For example, the
Kremlin towers, which became one of the most popular and «useful»
symbols for vodka producers, create one of the most stable
associations. Such execution is prohibited in Armenia, and not only by
the new law, it has been never allowed to do that. That’s just the
point that not all the trademarks you see in the market underwent
registration in the Intellectual Property Agency. As I have already
said, the legislation does not bind to that. Earlier, such a
requirement was in force, but later it was omitted. It was introduced
not as a punitive mechanism but as a way to raise the culture of
producers for them to understand that a serious producer should have a
serious brand, which means own and protected. When the Intellectual
Property Agency denies registration of any trademark, it draws
attention to the fact that one is going to infringe one’s rights.
Here, the rightholder of a brand may protect his rights through the
court. Moreover, the degree of protection of trademarks in one or
another country is directly connected with the state of the judicial
system.
By the way, at present, our Agency has already prepared a draft legal
act – the government’s decision on the procedure of examination of
trademark applications. The factors we are currently guided by should
become the key ones during evaluation, that is, comparison of key
identification elements to determine the degree of similarity of
trademarks, i.e. those a consumer pays attention to first of all. For
example, almost ten years ago, we denied mineral water producers of
trademark registration. In one case, a deer rested upon a cliff not
with one leg, like in the original image, but with two legs. In
another case, there were three but not two bushes beneath a cliff.
Everywhere, we brought forward one counterargument, a deer. No matter
how it stands, a consumer notices it first of all and can never
remember minor parts.
A category of world-renowned trademarks is introduced in the law. What
does it aim at if the majority of big trademarks are anyway registered
at international level?
There is difference here. A well-renowned trademark is not just a
brand, a well-known trademark of some company. It is a well-renowned
brand, the associations with which cover even the goods where it is
met by a consumer for the first time. If, let’s say, Sony automobiles
enter the market tomorrow, a consumer will probably have an
association that Sony Concern began to produce automobiles as well. By
order of Mercedes-Benz, goods with the company marking: cigars, pens,
etc. are produced. Therefore, many companies, when registering a
trademark, usually secure their rights for all the goods. The same may
also happen with our «Akhtamar» or «Armenia». That’s why, the aim of
this category is not to damage a well-known brand even in case if
other goods are produced under its name.
What other innovations are contained in the law?
The passed draft laws allow to also involve the third parties in a
trademark examination process. Any concerned party may submit its
objections and remarks regarding registration of a trademark during 2
months after publication of an application. You see, the experts’
knowledge is not unlimited, and remarks by a concerned person may be
very handy and useful. So, we shall also draw the attention of
economic entities to their brand protection issues.
Thank you.
Aram Gareginyan, ArmInfo, July 27, 2010
From: A. Papazian