Following publication of the Trademark Law of the Gulf Cooperation Council (GCC) in 2013, attention has turned to the implementation of this law – in particular, when it will come into force. This update examines this question within the framework of the GCC legislative system – in particular, when the law will come into force in each GCC state and the extent to which it will still be necessary to look at national legislation in order to confirm each state's position.
The harmonisation of IP and other laws has been a long-standing project for the six GCC states of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates, with the GCC Patent Law in place since 1992 and the GCC Customs Law in place since 2003.
The concept of a harmonised trademark law for all GCC states dates back to the 1980s. A draft GCC Trademark Law was published in 2006 in the GCC Official Gazette, although it was not implemented. In 2013 another version of the draft law was published, which led to further efforts to bring the law into force.
Implementing legislation on a regional basis requires an agreed structure between the relevant sovereign states. In the European Union, this is achieved either through regulations (which are self-executing and implemented automatically in each member state) or directives (which direct member states to implement the terms of the relevant directive into national law).
The implementation of legislation on a GCC-wide basis is similar to the EU concept of directives. In the case of the Trademark Law, the GCC Supreme Council (the highest decision-making body of the GCC) issued a resolution during the 33rd GCC Session held in December 2012. The resolution requires member states to implement the Trademark Law in their respective national laws "within a period of six months as from the date on which the Commercial Co-operation Committee approves the Implementing Regulations of the [Trademark] Law".
Article 52 of the GCC Trademark Law sets out the need for implementing regulations to be prepared and provides that the Commercial Cooperation Committee (a division of the GCC General Secretariat) is responsible for issuing these regulations.
The drafting of the implementing regulations appears to be in its final stage, with the regulations expected to be ready for publication in early 2016.
Once published, the national law of each GCC state will need to be reviewed in order to confirm when the GCC Trademark Law will come into effect and in what form. The position of each state is as follows.
Law 6/2014 (issued on February 17 2014) ratified the GCC Trademark Law and provides that it will come into force six months after the issuance of the implementing regulations. The existing Trademark Law in Bahrain (Law 11/2006) will be repealed when the GCC Trademark Law comes into force.
Accordingly, the GCC Trademark Law will come into force automatically and without amendment six months after the implementing regulations are issued.
Law 13/2015 (issued on March 11 2015) ratified the GCC Trademark Law in Kuwait. Law 13/2015 came into force immediately and repealed any provisions within the existing legislation which contradicted the GCC Trademark Law. However, the law also envisages that the minister of trade and industry will issue implementing regulations in accordance with the GCC Trademark Law.
Once the implementing regulations have been published in the GCC Official Gazette, the minister of trade and industry will likely issue corresponding implementing regulations at the national level in order to bring the GCC Trademark Law into force in Kuwait within six months.
Law 13/2015 also anticipates the payment of official fees and fines under the GCC Trademark Law in local currency (Kuwait dinars) rather than in Saudi riyals (as set out in the GCC Trademark Law).
Law 7/2014 (issued on June 8 2014) provides that the GCC Trademark Law will automatically come into force in Qatar six months after the issuance of the implementing regulations.
In addition, Law 7/2014 repealed Law 18/2007 (which ratified the 2006 version of the GCC Trademark Law). Law 7/2014 also states that provisions that contravene the GCC Trademark Law will be repealed, although no specific mention is made of Law 9/2002, which deals with trademarks, trade names, geographical indications and industrial designs.
It therefore remains to be seen whether Qatar will at some stage repeal specific provisions of Law 9/2002 in order to avoid potential disputes as to whether a provision has been repealed on the basis that it contravenes the GCC Trademark Law or whether it is still in force.
Interestingly, a copy of the GCC Trademark Law is attached to Law 7/2014. This differs from the implementing regulations in Bahrain and Kuwait, which refer to the GCC Trademark Law as published in the GCC Official Gazette. In practice, the result is the same (ie, all countries have adopted the same version of the GCC Trademark Law), but the mechanism used is slightly different.
Royal Decree M/94 (issued on May 23 2014) states that the cabinet agrees to ratify the GCC Trademark Law and that a royal decree has been drafted (but not published) in order to complete the ratification process.
Royal Decree M/94 does not specify:
- when the GCC Trademark Law will be implemented;
- whether it will be implemented without amendment; or
- how implementation of the GCC Trademark Law will affect existing conflicting Saudi laws.
In addition, no mention is made of repealing Saudi Arabia's existing Trademark Law.
As such, further legislation is likely to be enacted in due course in order to enable the GCC Trademark Law to come into force and repeal the existing Trademark Law.
Oman and United Arab Emirates
Neither Oman nor the United Arab Emirates has published any legislation with regard to the 2013 version of the GCC Trademark Law. It therefore remains to be seen how and when the GCC Trademark Law will be implemented in these states.
It appears that the implementing regulations will be published in early 2016. If this is the case, the GCC Trademark Law should come into force six months later, in the second half of the year.
However, the flexibility of the GCC legislative system means that the timing of the implementation of the GCC Trademark Law in each GCC state may vary and there may be some local modifications to the law as shown by the table below.
Click here to view table.
With further legislation pending in Oman, Saudi Arabia and the United Arab Emirates, it is not yet possible to assess whether there will be any significant local variations to the GCC Trademark Law as it applies in each state. However, it is clear that the version of GCC Trademark Law published in the GCC Official Gazette cannot be relied on to confirm each state's position without looking at national legislation in order to identify any variations which apply at the country level.Comment
For further information on this topic please contact Rob Deans or Carl Fennessy at Clyde & Co by telephone (+971 4384 4000) or email (firstname.lastname@example.org or email@example.com). The Clyde & Co website can be accessed at www.clydeco.com.
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