日常运营Listing基础：listing被禁的原因以及怎么解决这些问题

The UAE has announced the biggest legislative reform since years, this included the issuance of a new Federal Trademarks Law No. 36 of 2021 (“New Law”), which will come into effect on 2 January 2022. This is the most significant amendment to trademarks law since the Current Law’s enactment.

近日，阿联酋宣布了多年来最大的立法改革，其中包括颁布了2021年第36号新的联邦商标法（下指新法），该法将于2022年1月2日生效。这是自现行法颁布以来对商标法最重要的修订。

The New Law addresses several issues that were lagging under the Current Law such as registration of non-traditional trademarks, increasing the penalties for infringement of trademarks, and have confirmed some other aspects that were addressed through Court precedents such as prior use and registration in bad faith. In addition, the New Law has introduced the registration of Geographical Indications for the first time, and provided for the grounds of its registration and enforcement.

We summarise here the key changes set out in the New Law.

新法解决了非传统商标注册、增加商标侵权处罚等现行法律滞后的几个问题，并确认了通过法院判例解决的其他一些问题，如在先使用和恶意注册。此外，新法首次引入了地理标志登记制度，并规定了登记和执行的依据。新法规定的程序将在尚未颁布的行政法规中进一步细化。

我们在此总结了新法中规定的主要变化。

The definition of trademarks has been expanded in the New Law to cover more of non-traditional trademarks such as; 3D trademarks, single color, holograms, sound and smell. 

The New Law provided a list of marks that cannot be registered as trademarks. While the list is almost the same as the one provided in the Current Law, the New Law has expanded the prevention to include any trademark that is identical, similar, imitation, translation, phonetic translation or transliteration of a previously registered trademark or well-known trademarks.

In addition, the New Law specifically prevented the registration of a 3D trademark that is the shape of the products covered under the registration or the shape that is necessary functional shape.

新法规定了不能作为商标注册的商标类型。虽然大体与现行法几乎相同，但新法扩大了禁止范围，现已涵盖到与先前注册商标或驰名商标相同、近似、摹仿、翻译或音译的任何商标。

此外，新法明确规定，三维立体标志禁止注册为其标志中所涵盖产品的形状或必要的功能形状的商标。

The criteria for considering a trademark as well-known has been clarified under the New Law. The criteria include; (i) the extent to which it is known to the concerned public as a result of its promotion, (ii) the period of its registration, its use, (iii) the number of countries in which it is registered or well-known, (iv) its value, or (v) the extent of its impact on the promotion of goods or services that use the well-known Trademark to distinguish them.

新法明确了商标驰名的标准。标准包括：(i)由于推广而为相关公众所知的程度；(ii)注册的期限、使用情况；(iii)注册或知名的国家数量；(iv)价值体现；或(v)其对使用驰名商标来区分它们的商品或服务的推广的影响程度。

It appears that the New Law will allow for multi-class application. However, this will be further decided and confirmed in the executive regulations, which has yet to be issued.

据悉，新法将允许一标多类提交申请，但这将在尚未发布的执行条例中进一步决定和确认。

Although the practice at the UAE Trademarks Office has allowed for the registration of series trademark, the New Law has specifically allowed the registration of series trademarks. Series trademarks are defined as trademarks that are similar in all its essential elements and have some differences that do not affect the substantial element of the trademark such as the colour or the specifications, provided that it is within the same class.

虽然在阿联酋商标局的实践中系列商标可供注册，但新法的出台明确规定允许系列商标注册。系列商标是指在不影响商标的颜色、规格等实质要素的情况下，所有基本要素上都相似的、但在同一类中存在一定差异的商标。

The New Law has clearly provided for the rights of a prior user of a trademark to cancel a trademark that was registered within 5 years unless such registration was accepted, expressly or impliedly, by the prior user of the trademark.

新法明确规定，商标在先使用人有权在五年内撤销已注册的商标，除非该商标在先使用人明示或默示接受该注册。

Similar to the situation under the Current Law, a trademark will become immune if registered and used for 5 years without any challenges to its ownership. However, the New Law excluded a trademark that was registered in bad faith from this immunity. This complies with the Paris Convention and Court precedents in the UAE.

与现行法律的情况类似，如果商标注册并使用满五年且其所有权没有收到过任何挑战，则该商标将获得豁免，但新法将恶意注册的商标排除在此豁免之外。这一规定符合《巴黎公约》和阿联酋的法院判例。

Contrary to the Current Law, where the jurisdiction for cancellations of trademarks is with the competent court, the New Law moved this jurisdiction to the Ministry of Economy. Regardless of the reasons for the cancellation (similarity, bad faith, non-use…etc.), the Ministry shall have the jurisdiction to look into all cancellation requests.

与现行法律相反，现行法律中商标撤销的管辖权由主管法院管辖，新法将这一管辖权移至经济部。无论撤销理由是什么（如相似、恶意、未使用等），该部都将对商标案件的撤销申请有管辖权。

The New Law allowed the assignment a trademark with or without consideration, which was not clear under the Current Law.

With respect to trademark licenses, the New Law has clearly stated that it is not required to be registered with the Ministry. Registration of license agreement was subject to debate under the Current Law, as it used to affect the license effect against third parties, this has now been clarified, and there will no longer be any effect for not registering the license.

新法允许有偿或无偿转让商标，而现行法律对此并不明确。

在商标许可方面，新法明确规定不需要在商务部注册。过去许可协议的登记会影响对第三方的许可效力，故在现行法下许可协议是有争议的。但经由新法的出台，现已明确不做许可备案登记则第三方使用商标注册人的商标不再有任何法律效力。

The New Law provided time frames that differ from the Current Law:

(1) The Ministry shall examine trademark applications within (90) days from the date of application. This is a longer period than it is in the Current Law, which is (30) days.

(2) Appeals to the competent court against the Trademarks Committee’s decision in rejection of trademark applications become (30) days, as opposed to (60) days in the Current Law.

新法规定的商标相关期限与现行法不同：

（1）商务部应在自申请之日起90天内审查商标申请，这比现行法律中的30天更长。

（2）向主管法院对商标委员会驳回商标申请的决定提出上诉期限为30天，而非现行法律中的60天。

This is a brand new addition to the IP legislations in the UAE. Geographical Indications (GIs) are defined in the New Law as any indication showing that a good has originated in the territory of a member country of the World Trade Organisation or in a region, location, or place of that region if the good’s quality, reputation, or other characteristics are primarily due to its geographical origin.

A GI can be a sign or a number of signs in any form, including words, geographical names, personal names, numbers or colours.

地理标志是新法中的全新补充内容。地理标志在新法中的定义如下：

某标志的商品来源于世界贸易组织（WTO）成员国地域内，或来源于该地域中的某个地区或某地方，该商品的特定品质、信誉和其他特征来自于其地理来源，可被认定为地理标志。

地理标志可以是一个或多个包含文字、地名、人名、数字或颜色的任何形式的标志。