- Law No 241-z allows the parallel import of specific goods in certain circumstances
- The goods must be included in the list of goods that are essential for the domestic market
- The procedure for forming, determining and maintaining lists of goods that are essential for the domestic market was recently approved
It seems that the legalisation of parallel imports has become the hottest topic for Belarusian IP legislation in 2023. Parallel-imported (grey market) goods are trademarked goods that are imported and sold in a particular market without the trademark owner’s consent. There were two key legal acts in this regard this year:
- the law of the Republic of Belarus No 241-z, dated 3 January 2023, “on the limitation of the exclusive rights to intellectual property”; and
- the provision on the procedure for forming, determining and maintaining lists of goods (groups of goods) that are essential forthe domestic market, which was approved by the Regulation of the Council of Ministers of the Republic of Belarus No 365,dated 3 June 2023, “on the procedure for forming, determining and maintaining lists of goods”.
Law No 241-z
At the beginning of 2023, the Belarus government opened the country’s market to parallel imports under certain conditions. The law essentially allowed the parallel import of specific goods in certain circumstances – that is, the import and circulation of goods bearing trademarks is allowed without the consent of trademark holders from foreign states, including “unfriendly” ones. This is applicable subject to the following condition: these goods should be included in the list of goods that are essential for the domestic market. Such trademark use is not considered as trademark infringement.
Lists of goods should be compiled by the Belarusian state authorities appointed by the Belarusian government. Another peculiarity is that goods should not be included in these lists if the rights holder or other entities (with the rights holder’s consent) have trade or economic relations with Belarusian legal entities or individuals and this cooperation “prevents a critical shortage of these goods in the domestic market”.
Finally, if goods are included in the list of goods that are essential for the domestic market, the relevant intellectual property should be temporarily excluded from the Belarusian IP customs register.
The most important provisions of the law entered into force on 17 January 2023 and will remain in force until 31 December 2024 (inclusive). Upon termination of these provisions, the following acts will not be recognised as trademark infringement:
- the further sale of goods included in the lists of goods essential for the domestic market and imported into Belarus between 17 January 2023 and 31 December 2024 (inclusive); and
- further trademark use on goods without the consent of the trademark holder if this is needed for use of the goods in accordance with their purpose.
Provision on lists of goods
The provision established that preliminary lists of goods that are essential for the domestic market will be formed by the republican state authorities and other organisations subordinated to the Belarus government. Proposals on the content of the lists can be submitted by other interested state authorities.
Such proposals should be accompanied by a justification for the need to include these particular goods in the list. The justification should contain a range of information, including:
- why there is a need to import and introduce into civil circulation goods bearing a trademark without the consent of the rightsholder; and
- the absence or insufficiency of interchangeable (similar) goods produced in Belarus.
All proposals should be sent to the Belarus anti-monopoly authority (the Ministry of Anti-monopoly Regulation and Trade), which will send summarised information to the Ministry of Economy which, in turn, will send it to the Commission on Industrial Policy under the Belarus government.
As a general rule, lists of goods determined by the Ministry of Anti-monopoly Regulation and Trade should be posted on the official website of the regulator. At the same time, information constituting a commercial, official or other secret protected bylaw will be excluded.
To the authors’ knowledge, as of 20 September 2023 the regulations at issue had not been
de facto applied, as the mentioned lists of good had not been published.
This article first appeared on WTR Daily, part of World Trademark Review, in September. For further information, please go to www.worldtrademarkreview.com.