Trademark opposition and infringement in Iraq

In briefAn interested person may object in writing to the registration of a mark within ninety days, counted from the last announcement. The court may be asked to cancel an entry in the cases article 21 sets out. Imitation and unlawful use are acts for which the Law provides a penalty and allows protective measures.

An announcement that a mark has been accepted in principle does not close the door to everyone else. There is a path against the application while it is still pending, and there are later paths against an entry already made, or against use in the market. The two should not be confused.

Objecting while the application is still pending

Article 11 gives an interested person ninety days, counted from the date of the last announcement, in which to lodge a written objection with the Registrar. A copy is served on the applicant. The applicant must answer in writing within thirty days; if no answer arrives, the applicant is treated as having withdrawn.

The Registrar, before deciding, hears both sides, or one side if that is requested, and then accepts or refuses the registration, and may attach restrictions to an acceptance. If the Registrar regards the objection as not serious, the Registrar may, by a reasoned decision, go on with the procedure despite it. The stages of the filing itself are on the path of the application. A decision of the Registrar may be taken to the Court of First Instance (محكمة البداءة) within thirty days of notification, apart from what article 24 excepts.

Asking the court to cancel an entry already made

Any interested person may apply to the court to cancel the registration of a mark within five years of the date of that registration, stating the facts relied on. Independently of that period, a request for cancellation may be made at any time in the situations article 21 lists. Those include: the mark having become a common name for the goods or services for which it was entered; the entry having been obtained by fraud or in breach of the rules on registration; the mark not having been used for three years running, unless a cause outside the owner's control, or a legal excuse, is proved; and use, by the person who obtained the entry or with that person's licence, in a way that misleads as to the source of the goods or services.

The Registrar, and any interested person, may also apply to the court to remove a mark entered contrary to the Law, under article 24. Some of the Registrar's decisions under that article may be taken first to the Minister within thirty days of notification, and the Minister's decision may then be taken to the court within thirty days.

Conduct the Law treats as imitation or unlawful use

Article 35 treats as an offence the forgery of a mark lawfully entered, or its imitation in a manner intended to deceive the public; the use in bad faith of a forged or imitated mark; the unauthorised use of a registered mark belonging to another; placing such a mark on products; the sale, offering or possession for sale, done deliberately, of products bearing it; and the deliberate offering of services under such a forgery, imitation or unauthorised use. The Law provides a custodial penalty and a fine, and allows the court to order confiscation of the products and of the means of infringement.

Protective measures before a claim is filed

The owner of a mark may, even before a civil or criminal claim is started, ask an investigating judge or the Court of First Instance (محكمة البداءة) to order protective measures, in particular the attachment of tools, products and packaging on which the mark in issue has been placed. The judicial authority may order measures without prior notice if delay would cause irreparable harm, or if there is a clear risk that evidence will be lost. Those measures may be lifted if proceedings are not begun within twenty working days, or within thirty-one days on the calendar, whichever of the two expires later, under article 37.

The office follows these questions from Baghdad, al-Yarmouk.

An objection to an application that has been announced is one path. A claim for imitation or unauthorised use, in the forms article 35 lists, turns in principle on a registered mark. A well-known mark has a special rule in article 4 bis even if it has not been entered in Iraq; that rule is explained on the practice-area page.

Legal basis and sources

Trademarks and Trade Descriptions Law No. 21 of 1957, as amended, articles 11, 12, 21, 35 and 37

Frequently asked questions

Does the application lapse if the applicant does not answer an objection?

Yes. If a written answer does not arrive within thirty days of service of the objection, the applicant is treated as having withdrawn, under article 11.

Is a mark protected against imitation before the certificate is issued?

An objection is a path against an application that has been announced. A claim for imitation or unauthorised use, in the forms article 35 lists, turns in principle on a registered mark. A well-known mark has a special rule in article 4 bis even without a local entry.

Within what time must proceedings be started after protective measures are ordered?

Article 37 provides that the measures may be lifted if proceedings are not begun within twenty working days, or within thirty-one days on the calendar, taking the later of the two. The period is read from the text and from the date of the order.

Always check the text in force and its amendments in the official source.

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Opposing registration of a mark, and imitation of a mark