Commercial law. Means of individualization of goods (lecture notes)

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Commercial law. Means of individualization of goods (lecture notes)

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LECTURE No. 15. Means of individualization of goods

In conditions of saturation of the commodity market, the trademark is becoming increasingly important. A trademark is regulated by Law of the Russian Federation of September 23, 1992 No. 3520-1 "On Trademarks, Service Marks and Appellations of Origin". A trademark or service mark is a designation that helps to distinguish a good or service of one legal or natural person from the goods and services of another legal or natural person. As a trademark, it is possible to register verbal, figurative, three-dimensional and other designations and their combinations in the name of a legal entity, as well as an individual. Trademark registration is carried out in any color and color combination. The sound may also be recognized as a trademark. Trademark Functions:

1) selection of goods among homogeneous goods;

2) an indication of the source of origin of the goods;

3) an indication of a certain quality of the goods;

4) advertising of this product.

There are types of trademarks:

1) registered;

2) well-known;

3) individual or collective.

A registered trademark is a mark that has passed the official registration procedure.

Well-known trademarks - marks that are not registered, but as a result of their intensive use, have become widely known among consumers in relation to goods of this type.

An individual trademark is a sign, the exclusive right to use and dispose of which belongs to one person who has registered a trademark in his own name. The Russian Federation does not provide for the possibility of joint ownership of a trademark by several persons. In accordance with international treaties, associations of persons, the creation and activities of which do not contradict the law, have the right to register in Russia a collective trademark, which is intended to provide goods that are produced and have the same qualities or other common characteristics. Such a trademark belongs to an association of persons and is not the object of the rights of each individual participant. According to the form of expression, trademarks are:

1) verbal;

2) pictorial;

3) voluminous.

Word trademarks are subdivided into signs:

1) in the form of natural language words;

2) in the form of artificial formation of words.

Figurative trademarks - the image of living beings, objects, natural and other objects, figures on the plane.

Volumetric - three-dimensional objects, figures and combinations of lines.

Combined trademarks contain combinations of elements of different types of trademarks. Other designations may include sound, light and other designations.

A person may be denied registration of a trademark. There are relative and absolute refusals to register a trademark. Absolute ones are determined by the properties of the designation and are related to the content of the trademark:

1) designations that do not have a distinctive ability;

2) false or capable of misleading consumers regarding the product itself or its manufacturer;

3) contrary to public interests, principles of humanity and morality;

4) phrases that are generally accepted symbols and terms;

5) titles of well-known works of art without the consent of their authors;

6) designations representing individual letters, numbers that do not have a graphic designation, combinations that do not form a composition;

7) common names representing simple indications of goods;

8) designations characterizing the goods. These are such designations that indicate their type, quality, quantity, property;

9) designations that consist of elements representing coats of arms, flags, abbreviated or full names of international organizations;

10) designations that are identical or similar to the degree of comparison with special designations and images, names of especially valuable objects of cultural heritage, with images of cultural values stored in private collections;

11) designations containing elements that are protected in one of the states - parties to the agreement, as designations identifying wines and spirits originating from its territory and having special qualities and other characteristics that determine their origin, if the trademark of wine or spirits the drink does not originate from the territory of this object.

The relative conditions for refusal to register a trademark include:

1) if such a trademark has already been registered by another person;

2) if this trademark is identical or similar to existing trademarks.

The use of a trademark is understood as its use on packages, goods by the owner of the trademark or by a person on the basis of a license agreement. You can use the trademark on signs, advertising. The use of a trademark is not only a right, but also an obligation. Registration of a trademark is terminated in case of non-use of a trademark for 5 years continuously from the date of registration. The license agreement (franchising agreement) is the basis for the assignment of the right to a trademark to another person.

The use of a trademark is terminated:

1) due to the expiration of the trademark registration;

2) on the basis of a court decision that has entered into legal force on the early termination of the legal protection of a trademark in connection with its use on goods that do not have uniform qualities;

3) on the basis of a decision on the early termination of the use of a trademark due to its non-use;

4) on the basis of the decision of Rospatent on the early termination of the trademark in the event of liquidation of the organization;

5) in case of refusal of the trademark of the right holder;

6) on the basis of a decision taken by the Chamber for Patent Disputes on the basis of an application by any person for the early termination of the legal protection of a trademark upon the transition of a registered trademark into general use as a designation of goods of a certain type. Appellation of origin of goods - a designation that is or contains the modern or historical name of a country, locality, locality or other geographical object, or a derivative of such a name, which became known as a result of its use to designate goods, the special properties of which are exclusively or mainly determined natural conditions characteristic of a given geographical object, human factors, or both at the same time. The difference between an appellation of origin and a trademark:

1) a legal entity can become the owner of a trademark, any number of legal entities that operate in this particular region can become the owner of the appellation of origin of goods;

2) the protection of the appellation of origin of goods is carried out indefinitely;

3) the appellation of origin of goods cannot be transferred under a license agreement (franchising agreement).

The use of the appellation of origin of goods is terminated:

1) with the disappearance of conditions characteristic of the region;

2) if it is impossible to use when changing the characteristics of the goods.

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