The Council of Ministers of the Republic of Belarus has defined the procedure of forming the list of goods, which are essential for the internal market
In development of the Law of the Republic of Belarus of January 3, 2022 No. 241-З «On limiting the exclusive rights to the intellectual property objects» the Council of Ministers has approved the Regulation on the procedure of forming, defining and maintaining the list of goods (groups of goods) that are essential for the internal market (hereinafter – Regulation) by its Regulation No. 365 of June 3, 2023.
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The Law No. 241-Z allows unauthorized importation of goods where IP objects are used (contained, included) to the territory of the Republic of Belarus and making them available without the consent (permission) of the rightsholders from foreign states, including those committing unfriendly actions, if such goods are included in the lists of goods (groups of goods) that are essential for the domestic market. The Council of Ministers of the Republic of Belarus is authorized to determine the state bodies authorized to determine and maintain the lists of goods (groups of goods) which are essential for the domestic market, as well as the procedure for formation and maintenance of such lists. |
Formation procedure of the list
In accordance with the Regulation, the interested state authorities* prepare and send proposals to the authorized bodies (organizations) to include goods in the preliminary list of goods which are essential to the domestic market.
For the purposes of the Regulation, interested state bodies include organizations subordinate and/or accountable to the President of the Republic of Belarus, the National Academy of Sciences of Belarus, republican bodies of state administration and other organizations subordinate to the Government of the Republic of Belarus, regional (Minsk City) executive committees (Para 5 of the Regulation).
Based on the analysis of the situation on the domestic market in the relevant area and taking into account the proposals of the interested bodies (organizations), the authorized bodies (organizations) make a decision on the inclusion of goods in the preliminary list, which within 3 working days of its adoption is sent to the Ministry of Antimonopoly Regulation and Trade of the Republic of Belarus (hereinafter – MART) with the reasoning of the necessity to include goods in the list.
The Regulation provides for the authorized bodies necessity to justify the inclusion of goods in the list, in particular to cite:
- information on the need to import and introduce into civil circulation goods in which an intellectual property object is applied (contained, included) without the consent of right holders from foreign states, including those committing unfriendly acts;
- reasons for the necessity to import into the territory of the Republic of Belarus and introduce into civil turnover of goods in which the object of intellectual property is applied (contained, included);
- information on the absence or insufficiency of interchangeable (similar) goods produced in the territory of the Republic of Belarus, or the absence of confirmed possibility of using the interchangeable (similar) goods in the relevant area of activity;
- the volume and dynamics of import of goods in absolute and relative terms to the total volume of production or consumption in the Republic of Belarus of such goods;
- the expected effect of the inclusion of the goods in the list of goods.
MART summarizes the submitted documents and sends them to the Ministry of Economy of the Republic of Belarus for submission to the Commission on Industrial Policy Issues (hereinafter – the Commission).
In assessing the advisability of including a product in the list, the Commission, among other things, pays attention to the possibility of meeting the demand for consumer goods, import substitution policy and risks for domestic production. Based on the results of the Commission's review of documents, MART includes the goods agreed by the Commission in the lists of goods.
Authorized body to maintain the list
The Regulation authorizes the MART to maintain appropriate lists of goods. Lists of goods determined by the MART shall be posted on its official website, except for information constituting commercial, official and other legally protected secrets.
Exception
It must be noted that the Law No. 241-Z establishes that goods are not included in the list of goods essential to the domestic market if:
- rights holders or other persons with their consent (permission) in relation to such goods (groups of goods) carries out trade and economic cooperation with legal and (or) natural persons of the Republic of Belarus;
- such cooperation does not lead to a critical shortage of these goods (groups of goods) in the domestic market.
Commentary
The Regulation No. 365 is the first document aimed at the practical implementation of the provisions of Law No. 241-Z, which provides the possibility of supplying goods to Belarus without the permission of the IP object owner, including registered trademarks, patents for inventions and industrial designs, copyrights. The Regulation approved the approximate order of the formation of the list, as well as the body authorized to maintain it, which indicates that such a list may be published in the near future.
Inclusion of goods in the list will lead to:
- the use of intellectual property objects contained in the goods included in the list without the consent of the right holder will not be considered as a violation of the exclusive rights of the right holder;
- if a commodity from the list contains the intellectual property object, which is included in the National Customs Register of Intellectual Property Objects of Belarus, then this object is subject to temporary exclusion from the register.
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