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Theocharidou Associates
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What is Intellectual Property?
Intellectual property (IP) refers to creations of the mind, such an inventions; literary and artistic works; designs, and symbols, names and images used in commerce.
IP comprise of many different forms. All these forms are very valuable assets of the society as they maintain economic growth. Enormous number of businesses and individuals across the entire world relies on sufficient protection and enforcement of their innovation, creativity, quality and exclusivity.
However, without knowledgeable and proactive legal advice and clear IP strategy, businesses may fail to protect their IP rights, leaving themselves without effective protection in cases of infringement.
Trademarks, patents, copyright, registered designs, the law of passing off, but also some lesser known rights such as plant breeders rights, are all forms of intellectual property rights protection.
Trademark registration in Cyprus
The registration and protection of marks in relation to goods and services is governed by the Law Cap 268, as amended by Laws 63/1962, 69/1971, 206/1990 and 176(I)/2000 and by Regulations of 1951-1992 as amended, which confers protection in combination with the provisions of the International Convention of Paris for the Protection of Industrial Property and Regulations of the World Intellectual Property Organization (WIPO).
Trademarks in Cyprus are also governed by the Madrid Agreement (1891) and the Madrid Protocol (1989), concerning the international registration of trademarks, by the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), EU directives and regulations.
It is important to mention that protection in Cyprus is granted not only for trademarks which belong to Cypriot citizens but also to trademarks owed by foreigners with no discrimination.
Relevant for the registration and protection of trademarks in Cyprus is the Office of the Registrar of Companies and Official Receiver (the Registrar).
What kind of trademark can be registered?
A word or a combination of words, letters, and numerals can perfectly constitute a trademark. Trademarks, however, can also consist of symbols, drawings, three-dimensional features such as the shape and packaging of goods, non-visible signs as sounds or fragrances, or color shades used as distinguishing features.
In order to be registrable, the trademark must satisfy following criteria:
· It must be distinctive;
· Must not give rise to likelihood of confusion with another mark;
· Must not fall within certain categorical restrictions.
What can be registered as a Trademark?
· The name of the company/individual or firm represented in a special or particular manner;
· The signature of the trademark applicant or a predecessor in his/her business;
· One or more invented words;
· One or more words with no direct reference to the character or quality of the goods, and are not, according to ordinary signification, a geographical name or surname;
· Any other distinctive mark.
It is good to note that a colour may contribute to distinctiveness, and is always relevant in determining resemblance and likelihood of confusion and eventual infringement. In situation when trademark is registered without limitation of colour, it is considered to be registered for all colours. Colour in itself is registrable only if distinctiveness is provided and proved. The same limitations apply for three-dimensional shapes.
What cannot be registered as a Trademark?
A trademark cannot be registered if:
· It is considered to deceive or cause confusion;
· It is contrary to public law or morality;
· It contains any scandalous words or design;
· It would otherwise not be entitled to protection in a Court of Justice.
A trademark cannot be registered in respect of any services if it is identical or deceptively similar to another, already registered trademark, or for which the registration is pending in respect of identical services or goods and will eventually cause confusion. *
* In case of honest concurrent use or of other special circumstances, which in the opinion of the court or the Registrar make it proper to do so, the court or Registrar may permit the registration of trademarks that are identical or that closely resemble each other in respect of the same goods or services by more than one proprietor, subject to such conditions and limitations, if any, as the court or Registrar may see fit to impose.
Procedure before the application
Before submitting an application, it is in preference of each potential trademark proprietor to carry out a preliminary legal search throughout the records of trademarks which are kept in Cyprus by the relevant department of the Registrar. The search is carried out in order to examine the existence of any similar, identical, almost or completely identical marks, of the same class or of different classes, * in relation to the one for which the application will be submitted.
For the classification of trademarks, the international classification of goods and services (the Nice Classification established by the Nice Agreement)* applies.
* The 11th edition of the Nice Classification (NCL) came into force on January 1st 2017.
Procedure
In Cyprus, for a successful registration of a trademark, a full application has to be filed before the Office of the Registrar of Companies and Official Receiver. The application has to be filed on the prescribed form in Greek language, providing all the relevant details such as name and/or picture of the mark, the required class or Part of the Registry, a description of the mark and the products it covers, the name and/or picture of the mark and the name, address and occupation of the applicant. Any lawyer licensed to practice law in Cyprus can be appointed as agent with respect to the registration of trade marks, provided that he/she is supplied with a Power of Attorney (Form TM1). According to Cyprus Law, only licensed lawyers (advocates) can act in matters of trademarks registration.
Once the application of a trademark on the prescribed form is submitted to the Registrar (giving all the relevant details as mentioned above), the Registrar commences a search to confirm that the mark is in conformity with the relevant legal criteria regarding distinctiveness etc., in order to be registrable according to the provisions of the law of Cyprus (formal examinations and an examination of distinctiveness). It takes approximately 4-5 years before an office action is issued by the trademark authority or registration.
In case some complications arise within this period, the Registrar may ask for further clarification or set out his objections and the reasoning behind them. The most frequent complication during the registration results from the wrong class applied in the application, not clear or confusing pronunciation of word or words in a language other than Greek, English or Turkish or indistinct representation of picture or logo in conjunction with a trademark.
In this case, the Registrar’s objections may be disproved with a “considered reply” and/or a hearing in which the applicant defends his perspective.
If the Registrar’s decision is not accepted by the applicant, the next recourse has to be field before the Supreme Court. Although the attitude of the Supreme Court, in general, is conservative one, and they usually have a tendency to demonstrate that they cannot interfere with the Registrar’s discretionary power, they not always follow the Registrar’s decision.
Otherwise, once, the Registrar approves the registration of the trademark and provides that obstacles, if any, have been overcome (whether outright or under certain conditions or after the hearing and exchange of arguments), the mark is published in the Official Gazette of the Republic of Cyprus for the public to observe and submit its objections to the Registrar, if any. The opposition period is two months (extension of time are given) from the publication of the trademark. In case an opposition will be raised, the applicant is notified and able to argue. If applicant successfully refutes the opposition, the Registrar issues the certificate of the mark.
Once the mark is registered, it provides a monopoly for its proprietors. The protection will prevent others from trading at the expense of the proprietor’s business reputation and thus registering a mark is essential to ensure that the utilization by the proprietor leads to an increase of the mark’s value and reputation.
Duration
A trademark registration in Cyprus starts with registration date and is valid for 7 years. The registration is renewable for periods of 14 years. Applications for renewal may be made at any time within three months of the expiry date.
Registration of Trademark abroad
Since November 2003, Cyprus is a party to the Madrid Agreement and Madrid Protocol (Madrid system) what gives an opportunity to trademarks’ proprietors to have their trademarks protected in the territories of up to 98 members at once, or according to their business plan in few selected countries by filing just one application, in one language (English, French or Spanish), and paying just one set of fees in Swiss francs.
As the business of a trademark proprietor evolves, the Madrid System can be used to expand protection into new markets.
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Cyprus has one of the most competitive tax systems worldwide, in full conformity with the EU and international regulations. The Republic of Cyprus has concluded the highest number of double tax treaties compared to any other offshore jurisdiction, particularly with Central and Eastern European Countries and a number of Middle Eastern countries. Under more specific terms, Cyprus registered companies may benefit from Cyprus’ extensive double taxation treaty network, with over 43 countries worldwide.
Business activities may include the formation of: Holding Companies, Finance Companies, IP Companies, as well as Investment Funds.
Cyprus Corporate income tax rate of 12,5%, is the main tax applicable on the income of a Cyprus registered company.
Advantages of a Cyprus registered company:
- Foreign sourced dividends are exempt from taxation (under certain conditions)
- Disposals of shares and other qualifying titles (such as corporate bonds) are exempt from taxation (precondition: the disposed company should not hold any immovable property in Cyprus)
- Very low withholding taxes on payments from Cyprus
- Financial gains deriving from foreign Permanent Establishments, are exempt from taxation in Cyprus (under certain conditions)
- Anonymity – non-disclosure legislation in Cyprus enables you to conduct business with a far greater degree of privacy than in other European countries.
Since 2004, the Republic of Cyprus is a Member State of the European Union and since 2008, a member of the Euro zone. Cyprus is considered to be a great financial center, which is mainly characterized by political stability, high level protection of human rights and the prevalence of the rule of law. Cyprus is also a member of the British Commonwealth, Council of Europe, IMF, UN, World Bank and WTO and is a signatory part to the most important international Conventions and/or Treaties.
Cyprus’ legal and judicial system is very much similar with that of England. Therefore, Cyprus’ corporate regulations have been highly influenced by the equivalent English Companies Act. Moreover, the Cyprus’ legal system is structured on the English common law system. Cyprus legislation is in full conformity with the EU “Acquis Communautaire”. European Union Regulations are fully and directly implemented, into local legislation.
If your company is yet to take advantage of the many benefits to be gained from operating through Cyprus, let’s talk!!
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