The Community Trademark and the Unification of the Legislation of the Balkan States in the End and in the Beginning of the European Accession Process
In common European views and perceptions there is a tendency that the countries from the Balkan region are perceived as one political, economic and legal whole, and the differences between them are reduced to domestic and foreign political factors, which have shaped a different starting point and speed for the accession process to the European Union.
These perceptions and views are justified to a certain extent with regard to the apprehension of the Balkan region as a whole with almost similar economic characteristics. However, the national laws of these countries, including the institution of the trademark, bear many distinctions. This presupposes different legal measures in the process of harmonization of the legal structure of the trademark regime in the compared states and in the process of application of the rules of the Community Trademark upon accession.
Additionally, at least two of the Balkan States, namely Bulgaria and Romania, have a specific economic position in the region. These countries will become outside borders of the European Union to the post-Soviet sphere, which with a view of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, would not establish a precedent. The interest towards Bulgaria and Romania follows from the fact that they will be an outside economic and legal border to the European Union and at the same time to the Western Balkans and Turkey. The successful construction of legislative and other legal measures for unification of important spheres in the field of intellectual property could significantly relieve and accelerate the accession processes of those countries starting the negotiations with the European Union.
The research project consists of a brief introduction touching upon the main legislative and judicial approaches to the harmonization of the legal framework of the national trademarks in the countries of the Luxembourg Treaty 2005 while stressing on the regimes of registra-tion of the national trademarks according to their national laws.
The main part of the work is divided into three chapters. The first deals with the origin and legal framework of the national trademarks, including registration and protection of the trademark rights in Bulgaria and Romania as countries from the Balkan region which have practically completed their accession process. These countries are contrasted with the rest of the Balkan countries, predominantly with the countries of the post-Yugoslavian area, as they are at different stages of their preparation for starting the accession negotiations. The second chapter concentrates on the differences and similarities in the laws of the national trademarks in the compared countries from the point of view of multilateral legal acts (conventions, treaties, etc). The third chapter looks at the legal treatment of the so-called bad faith registration of the trademark: comparison of the problem according to the Community Trademark Regulation 40/94 on the one hand, and the national laws of the two groups of Balkan countries on the other, where the emphasis will lie on proving bad faith.
The final part is comprised of conclusions and recommendations in connection with the anticipated problems that may arise in the process of application of Regulation 40/94 in Bulgaria and Romania from January 1, 2007 and harmonization of the national legislations in the other countries in comparison.
From the initial review of the collected normative and scientific sources in Croatia, Serbia and Macedonia the conditional conclusion can be drawn that none of the three systems works on the problem of harmonization between the CTM and the national trademarks. The legal surrounding of these problems is similar to the situation existing in Bulgaria and Romania seven or eight years ago. For example, none of the three countries has a designated specialized court or courts which can review the subject matter of administrative litigation on trademarks. Apart from this, there is no norm-regulated procedural set of laws, i.e. applicable are the administrative procedural and civil procedural laws. This is particularly important with regard to the problems of evidence and the evidential means.
The starting phase in which the three – although initially reviewed – legal systems are at present, raises questions at least with regard to Croatia's ambitions for a fast negotiation process for the country's accession to the EU.
In the context of what was said in the previous paragraph it is being thought of the possibility and necessity of an interim harmonization model in the area of IP and particularly trademarks, at least with regard to Serbia, Bosnia and Herzegovina, Macedonia and Albania, the prognosis for whose accession to the EU the experts refer to 2015-2020. The necessity and the narrow scope of such partial work have already been developed in the structure of the thesis and its explanatory part.