SERBIA Law and Practice Contributed by: Stevan Pajović, Tamara Simić Pajović, Medo Zornić and Jelena Stoljiljković, T-S Legal
applies when a supplier or distributor knows, or should know, that a product is intended for infringement. The scope of protection is determined through literal infringement, where all claim elements are present, and the doctrine of equivalents, where courts assess whether differing elements are technically equivalent. Defences include prior use, exhaustion of rights, or challenging patent validity, and the law allows excep- tions for personal, non-commercial use and research and development activities, including preparation for regulatory approvals. 1.6 Patent Enforcement and Remedies In Serbia, patent infringement disputes are not resolved before the Intellectual Property Office. The Office only grants and registers patents, but does not adjudicate on infringement. Jurisdiction over patent infringement cases lies with the ordinary courts, typi- cally commercial courts, depending on the value and nature of the dispute. These court proceedings can be lengthy, often ranging from several months to over a year, depending on the complexity of the case and the workload of the courts. It is common for validity challenges to be initiated concurrently during infringement proceedings, either before the Intellectual Property Office or, in the case of European patents, before the European Patent Office. Courts may consider such validity challenges and, if necessary, request additional evidence or even tem- porarily suspend proceedings until validity is deter- mined. However, parallel proceedings do not automat- ically halt the infringement case; the court assesses each situation individually. During proceedings, courts may also impose interim measures, including meas- ures prior to the main trial or, in exceptional cases, ex parte measures (without the presence of the oppos- ing party), such as securing evidence to prevent its destruction or concealment. If infringement is established, the patent holder may seek several remedies, including injunctions to imme- diately stop the infringement, damages or other com- pensation for losses incurred, seizure or destruction of infringing products, and publication of the court deci- sion at the infringer’s expense. Litigation costs and attorneys’ fees may be claimed separately or award- ed at the court’s discretion, but there is no automatic
entitlement to full reimbursement. The court evaluates such requests according to the circumstances of the case and applicable procedural rules. 2. Trade Marks 2.1 Legal Framework and Protectable Signs In the Serbian legal system, trade mark protection is governed by the Law on Trademarks. In trade mark law, a mark is considered to be any name or sign capable of distinguishing, in the course of trade, the goods or services of one economic entity from the same or similar goods or services of another entity. A mark may be verbal, graphical, three-dimensional, or combined, and may even consist of a sound, provided that it can be represented in musical notation. 2.2 Requirements for Trade Mark Protection For a sign to be protected as a trade mark, certain statutory requirements must be met. First, the absolute grounds must be satisfied. The primary requirement is distinctiveness, meaning that the sign must serve to individualise and distinguish the goods or services of one entity from the same or similar goods or services of another. For example, signs devoid of any distinctive character do not meet this requirement, such as a barcode, as well as generic or descriptive signs, for instance, an image of a bouquet for a flower shop. Signs that are in free use also lack distinctiveness. However, this requirement should not be approached too formalistically, as there are many cases where a non-distinctive sign has, through long-term and con- sistent use, acquired distinctiveness. The second requirement is that the sign must not be misleading in trade, meaning it must not deceive con- sumers. For example, using the word “choco” for chewing gum or an image of an olive for motor oil. The third requirement is that the sign must not be con- trary to law or morality.
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