Nowadays, at the time of rapid development of competition, the issue of primacy takes a significant role in the lives of inventors. Therefore, the question of priority for them is not the last value. What is the priority? Priority (from Lat. prior, French priorite, German рrioritat – preliminary, first, senior) - is the primacy in the act, in our case, in filing an application for registration of his own intellectual property object. In other words, this is the primary right of the person who first filed an application for registration of his object, to obtain a protection document. Additionally, it should be noted that in the case when two or more persons filed an application for the same or similar object, then the applicant has the right to receive the protection document whose application has an earlier filing date, or if the priority is claimed - to the applicant, whose application has an earlier date of priority, provided that said application is not considered withdrawn, was not withdrawn or rejected. That is, as a general rule, priority is given to that person who applied for registration first.
The date of filing an application is the date of its receipt by the competent authority provided that the submitted materials include: - an application in any form for registration of the object, stated in Ukrainian; - information about the applicant and his address in Ukrainian; - a part that looks like a designation (for trademarks) or an image of a product (for industrial designs); - a list of goods and services for which the mark is claimed, or a description of an industrial design, invention or utility model.
It must be remembered that anyone who has filed an application for registration of an intellectual property object to a competent authority and intends to register the same object in other country or even the countries in the future can take an advantage of the priority. However, do not forget that the time for declaring a priority is limited. According to the Paris Convention for the Protection of Industrial Property after the filing date the applicant has only
- 6 months from the date of filing the first application for trademarks and industrial designs and
- 12 months from the date of filing the first application for inventions and utility models.
The priority of the previous application is recognized by the applicant
- if he has filed an application for registration of the same object within 6 months after filing the previous application (for trademarks and industrial designs) and 12 months after filing the previous application (for inventions and utility models) after filing the previous application; or
- when together with an application but not later than three months from the filing date, the applicant filed to the competent authority an application on the priority with reference to the filing date and the number of the previous application and a copy of the previous application. The priority date in this case will be the date of filing the previous application.
As was noted above, the deadline starts from the date of filing the first application, while the filing date is not included. For example, if the applicant files an application for registration of an industrial design in Ukraine on April 01, 2019, he has the right to apply for registration of the same industrial design in any other country of the world by October 01, 2019 (inclusive).
Please bear in mind that the priority applies only to those features of the intellectual property object that are indicated in the previous application, the priority of which is stated. In other words, the principle of uniformity of the features of the previous application and submitted on its basis should be respected and no new features should be invented, since in any case the new features will not be prioritized and therefore a partial priority will be established.
Thus, in case the applicant files the application for registration of a trademark in black and white for goods in class 25 in Ukraine, it will be impossible to take advantage of the right of priority in a specified 6-month period in another country and apply for registration for the same trademark, but in colour, and for goods other than those specified in class 25 in the application materials filed in Ukraine. In this case the priority will not be established even partially, since the essential feature of its establishing is the image itself- as we can see it differs in our case: in Ukraine it is black and white, and in a foreign country it is in colour.
When filing an application for registration of an object of intellectual property most applicants hesitate and do not know whether they will register their rights to the same object in other countries in the future. Therefore, our advice on when and how you can take advantage of the priority will help you in making the final decision. From the moment of filing the application you, as an applicant, have 6 or 12 months (depending on the object) for reflection and making a decision for registration and distribution of yours rights abroad.
The specified period will give you the opportunity to test your object among potential consumers, analyze their capabilities in the market, and assess the need of consumers in this product. And do not be afraid that such test will lead to the disclosure of the object to a large mass and there will be a risk of copying by its competitors and creating a similar product, since the applicant, who has applied for registration of his object, is already protected against this kind of encroachment on his rights, thanks to the provisions of both national and international law, the term "priority". Due to this, the object can be shown to the general public with a guarantee that the applicant will not lose his rights. This is a role of our agency - to create an effective system of protection that will benefit not only the inventor, but also society as a whole, ensuring fair competition and compliance with the rules of fair trade.