Aspects of brand legal protection as an object of intellectual property.
Good day, dear Habraludi. With this post I am going to start a series of articles on the protection of intellectual property, but at once I make a reservation all the material will have a bias in the advertising environment and legal support for advertising.
The topic of the first publication will be “ Aspects of legal protection of a brand as an object of intellectual property ”
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According to some information, the word brand originates from Old Norse
"Brendr", which translates as - brand fire, and was used in cases when it came to livestock and household utensils. With the help of stamps, people tried to protect their belongings from theft and forgery. But, since the time of the conquest of Britain by Roman legionnaires, there have been cases of counterfeiting not just goods, but stamps used by Roman artisans.
In the XIX century. In England, the first trademark was registered in accordance with the Trademark Registration Act, which was published on August 13, 1875. This document came into force on January 1, 1876, and only in order to obtain a certificate before the others, an employee of the bass company Bass & Co. spent a cold new year's eve outside, in front of the door of the Patent Office, where registration was to begin in the morning. Thus, the world's first registered trademark has become - a red triangle - the symbol used to refer to ale "Bass".
Currently, the commonly accepted brand value is:
Marketers distinguish two main functions of the brand:
In the minds of the consumer band - an image, a set of impressions and associations, which allows you to distinguish and select the product of a manufacturer. From this we can conclude that the brand as an object of legal protection includes a whole range of components. Such as:
These components are inextricably linked with the image and ultimately create brand value.
The concept of a brand is similar to the concept of a trademark. However, the “trademark” is a legal concept and its application is limited by law. A trademark is a brand or can become part of it, if the consumer uses only those signs that are registered by the manufacturer as a trademark for recognition and identification, as well as if it is important to the consumer for distinguishing and selecting a product.
Verbal, pictorial, volumetric and other designations or their combinations in any color or color combinations can be registered as trademarks.
The verbal designation of a trademark is a word or combination of letters having a verbal character. The main advantage of such a designation over other types of trademarks is the presence of a phonetic aspect. As a rule, verbal trademarks have greater distinctiveness and are remembered better than figurative ones. Verbal notation is easier to associate with the brand name. It is also easier to create a series of trademarks and use them in a domain name. Most registered trademarks are verbal.
Recently, an increasing number of companies are registering advertising slogans as trademarks. The main criterion for the protectability of such marks during registration is the absence in the claimed designation of an indication of the type, quality, quantity, property, purpose, value.
Graphic trademarks are specific images made in color or black and white. Often, when developing graphic trademarks, they take as a basis the type of goods or services, the image of something characteristic or symbolic, which causes certain associations with specific objects and concepts. For example, all popular characters from Disney Enterprises, Inc. are registered as graphic trademarks.
Bulk trademarks - images in three dimensions, which can often be claimed as industrial designs. Often the subject of such a trademark is the original shape of the product, such as a chocolate figure, a bottle, a bottle, etc. The difference between a three-dimensional trademark and an industrial design is that its shape is not only due to its functional purpose. At the same time, the bulk trademark should also be protected as an industrial design.
Combined trademarks include combinations of the elements of all of the above characters. At the same time, the verbal and graphic part should put a single whole and be connected with the plot and composition.
Special types of trademarks include:
With the development of market relations, the legal protection of well-known trademarks, which, unlike the usual registration, acts indefinitely, is becoming increasingly important.
The trademark owner may affix a mark ® beside the trademark, which means that the trademark is registered and protected by law. Marking ™ is also used, indicating that the company uses the designation as a trademark. The latter option is possible in cases where the designation is only submitted for registration, or cannot be registered as a trademark due to restrictions established by law.
The use of a trademark is considered to be used on goods, packaging, on letterheads, in advertising, in print media, and at demonstrations at exhibitions and fairs. The right to exclusive use of the trademark has its holder. A trademark may be assigned by its owner under the contract to another legal entity or individual entrepreneur in relation to all or part of the goods for which it is registered. The assignment of a trademark is not allowed if it may cause a consumer to be misled as to a product or its manufacturer.
Important are the provisions of the Law on Trademarks, providing for the possibility of challenging the registration of a trademark on the grounds specified in the law, as well as the early termination of the legal protection of trademark in connection with its non-use.
The duty of handling such disputes is vested in the Chamber of Patent Disputes. A lawsuit filed directly to the court will not be considered due to non-compliance with the mandatory pre-trial procedure for settling a dispute on termination of the legal protection of a trademark. Only the decision of the Chamber of Patent Disputes that has already entered into force is appealed in court.
Disputes about the early termination of the legal protection of a trademark in connection with its non-use belong to a separate category of cases. A corresponding application for the early termination of legal protection under this ground may be filed with the Chamber of Patent Disputes by any person after three years, provided that this trademark is not used before filing such an application.
This provision is very significant, since often the maximum number of formal signs that a consumer can distinguish or identify a given product is registered as trademarks. Such elements as mentioned above can be the names of the product, its composition, form, character, colors, packaging, advertising slogan, etc. Although registration is intended to record differences from competitors' products, thereby leaving the latter with a smaller legal space, if all these registered marks are not used by the copyright holder for three years from the date of registration, any person can apply for early termination of such registration. The burden of proving the use of a trademark rests with the right holder of the trademark, the registration of which is disputed. Thus, this mechanism can be used as one of the means of unfair competition.
The unlawful use of a trademark or designation similar to the extent of mixing with a protected trademark entails certain legal consequences, namely civil, administrative or criminal liability. For the protection of civil rights, the right to demand the termination of a violation of a right, recovery of damages, restoration of business reputation, as well as the removal of a designation similar to the trademark to “the degree of confusion” from the goods or provisions is provided for. The specific method of protecting the violated right is chosen by the person whose rights are violated.
In continuation of the conversation about the components of the brand, it is necessary to take into account that its area of ​​application is limited by the perception and consumer associations that are taking shape in relation to the goods or services of a particular manufacturer. In this regard, the brand name is part of the brand, when the consumer has a stable association with the name of the company which owns this or that brand.
Often the name of the organization is born from the brand. There are cases when an organization registers its name as a trademark. Often a brand becomes part of the brand name. Since the same verbal designations can act as both trademarks and trade names, there are conflicts of rights to these objects of protection. In this regard, the possibility of protecting a company name as an independent object of intellectual property. In legislation, this issue is not well regulated. In practice, protection of a company name is complicated by the absence of a mechanism fixed by law to ensure its uniqueness.
Historically, the emergence of the corporate name institute is associated with the transition in the spring of 1921. to the new economic policy. In the newly created Soviet Union, economic units began to emerge that were required to be called something. In 1927, the “Provision on the Firm” was adopted, which is formally in force now. The Regulation states that in addition to the special name, which allows to distinguish this enterprise from other similar enterprises, commercial organizations must specify the organizational and legal form of the enterprise.
Meanwhile, it is important for the consumer to have the original memorable name, on which he orients himself later in the purchase of goods or services. On the organizational legal form, the consumer draws attention rather rarely.
One of the key issues related to the legal protection of brand names are the grounds and, accordingly, the moment of the occurrence of exclusive rights to use them.
Current legislation interprets this question. By virtue of the provisions of paragraph 4 of Article 54 of the Civil Code of the Russian Federation, the exclusive right to use a company name arises from a legal entity on the basis of registration of such a name in the prescribed manner. In this case, the procedure for registration, as well as the procedure for using company names, is determined by law and other legal acts in accordance with the rules established by the Civil Code of the Russian Federation. According to Article 15 of the Constitution of the Russian Federation, international treaties of the Russian Federation are an integral part of its legal system. In this regard, the provisions of Article 8 of the Paris Convention for the Protection of Industrial Property of 1883 are also applicable, according to which the company name must be protected in all countries of the Paris Convention. The rule of Article 8 of the Paris Convention is also confirmed by the Provision on the company dated July 22, 1927. Clause 10 of which states that the right to a firm arises from the moment when the use of the firm actually began. In this case, the company name is not subject to special registration, regardless of the registration of the enterprise.
By virtue of the foregoing, a special law on company names is needed that would eliminate the problem of ambiguous enforcement.
A brand becomes an object of copyright protection when it was created as a result of the creative work of the author. Property rights to designations that are brands may be transferred under the author's contract. Such contracts may be concluded in relation to the designations already created. However, most often are copyright order contracts, such as the development of a logo or a future trademark. As a rule, this is a pictorial designation.
The most significant component of the brand is its business reputation. To sell yourself profitably, you need to create a good impression of yourself. Without a decent reputation it is impossible to exist in the conditions of the modern market. To win customer loyalty, companies spend huge amounts of money on maintaining and improving their image. And disputes resolved in court are one of the levers of competition.
The brand is governed by a range of rights. In this case, the scope of the brand is much wider than the above brand components. The brand exists for the consumer and is inextricably linked with his idea of ​​the company.
In this article I tried to acquaint you with the history of the brand, its components and the problems of protecting its components.
In the next article I will tell you not just about the aspects of the legal protection of delirium, but I will try to tell you about the legal mechanisms for the protection of intellectual property.
Further within a cycle of articles for Habr I intend to highlight such topics as:
I would be glad if you choose which topics you need and with which to start earlier, and which ones to leave for later. On some topics I already have materials and they can come out earlier.
Unfortunately, the protection of intellectual property is quite complicated, but in the meantime an interesting and important topic. I tried to put it in the simplest possible way, but if there are any incomprehensible moments, ask, maybe I will tell you about something in more detail.
And the last. I am sure there is a huge amount of spelling errors in the text. Please point to them, I will correct.
Thank you all, waiting for your opinions.
Written for Habr and my blog www.infport.ru
The topic of the first publication will be “ Aspects of legal protection of a brand as an object of intellectual property ”
Intro
')
According to some information, the word brand originates from Old Norse
"Brendr", which translates as - brand fire, and was used in cases when it came to livestock and household utensils. With the help of stamps, people tried to protect their belongings from theft and forgery. But, since the time of the conquest of Britain by Roman legionnaires, there have been cases of counterfeiting not just goods, but stamps used by Roman artisans.
In the XIX century. In England, the first trademark was registered in accordance with the Trademark Registration Act, which was published on August 13, 1875. This document came into force on January 1, 1876, and only in order to obtain a certificate before the others, an employee of the bass company Bass & Co. spent a cold new year's eve outside, in front of the door of the Patent Office, where registration was to begin in the morning. Thus, the world's first registered trademark has become - a red triangle - the symbol used to refer to ale "Bass".
Currently, the commonly accepted brand value is:
- title;
- term;
- sign;
- symbol;
- design;
- as well as their combinations, designed to identify the goods or services of the seller from competitors.
Marketers distinguish two main functions of the brand:
- identification of the product and its manufacturer;
- product visibility in a competitive environment.
In the minds of the consumer band - an image, a set of impressions and associations, which allows you to distinguish and select the product of a manufacturer. From this we can conclude that the brand as an object of legal protection includes a whole range of components. Such as:
- trademark;
- company name;
- copyright;
- industrial model.
These components are inextricably linked with the image and ultimately create brand value.
The concept of a brand is similar to the concept of a trademark. However, the “trademark” is a legal concept and its application is limited by law. A trademark is a brand or can become part of it, if the consumer uses only those signs that are registered by the manufacturer as a trademark for recognition and identification, as well as if it is important to the consumer for distinguishing and selecting a product.
Verbal, pictorial, volumetric and other designations or their combinations in any color or color combinations can be registered as trademarks.
The verbal designation of a trademark is a word or combination of letters having a verbal character. The main advantage of such a designation over other types of trademarks is the presence of a phonetic aspect. As a rule, verbal trademarks have greater distinctiveness and are remembered better than figurative ones. Verbal notation is easier to associate with the brand name. It is also easier to create a series of trademarks and use them in a domain name. Most registered trademarks are verbal.
Recently, an increasing number of companies are registering advertising slogans as trademarks. The main criterion for the protectability of such marks during registration is the absence in the claimed designation of an indication of the type, quality, quantity, property, purpose, value.
Graphic trademarks are specific images made in color or black and white. Often, when developing graphic trademarks, they take as a basis the type of goods or services, the image of something characteristic or symbolic, which causes certain associations with specific objects and concepts. For example, all popular characters from Disney Enterprises, Inc. are registered as graphic trademarks.
Bulk trademarks - images in three dimensions, which can often be claimed as industrial designs. Often the subject of such a trademark is the original shape of the product, such as a chocolate figure, a bottle, a bottle, etc. The difference between a three-dimensional trademark and an industrial design is that its shape is not only due to its functional purpose. At the same time, the bulk trademark should also be protected as an industrial design.
Combined trademarks include combinations of the elements of all of the above characters. At the same time, the verbal and graphic part should put a single whole and be connected with the plot and composition.
Special types of trademarks include:
- sound (for example radio call signs)
- colors
- smells
Legal protection
With the development of market relations, the legal protection of well-known trademarks, which, unlike the usual registration, acts indefinitely, is becoming increasingly important.
The trademark owner may affix a mark ® beside the trademark, which means that the trademark is registered and protected by law. Marking ™ is also used, indicating that the company uses the designation as a trademark. The latter option is possible in cases where the designation is only submitted for registration, or cannot be registered as a trademark due to restrictions established by law.
The use of a trademark is considered to be used on goods, packaging, on letterheads, in advertising, in print media, and at demonstrations at exhibitions and fairs. The right to exclusive use of the trademark has its holder. A trademark may be assigned by its owner under the contract to another legal entity or individual entrepreneur in relation to all or part of the goods for which it is registered. The assignment of a trademark is not allowed if it may cause a consumer to be misled as to a product or its manufacturer.
Important are the provisions of the Law on Trademarks, providing for the possibility of challenging the registration of a trademark on the grounds specified in the law, as well as the early termination of the legal protection of trademark in connection with its non-use.
The duty of handling such disputes is vested in the Chamber of Patent Disputes. A lawsuit filed directly to the court will not be considered due to non-compliance with the mandatory pre-trial procedure for settling a dispute on termination of the legal protection of a trademark. Only the decision of the Chamber of Patent Disputes that has already entered into force is appealed in court.
Disputes about the early termination of the legal protection of a trademark in connection with its non-use belong to a separate category of cases. A corresponding application for the early termination of legal protection under this ground may be filed with the Chamber of Patent Disputes by any person after three years, provided that this trademark is not used before filing such an application.
This provision is very significant, since often the maximum number of formal signs that a consumer can distinguish or identify a given product is registered as trademarks. Such elements as mentioned above can be the names of the product, its composition, form, character, colors, packaging, advertising slogan, etc. Although registration is intended to record differences from competitors' products, thereby leaving the latter with a smaller legal space, if all these registered marks are not used by the copyright holder for three years from the date of registration, any person can apply for early termination of such registration. The burden of proving the use of a trademark rests with the right holder of the trademark, the registration of which is disputed. Thus, this mechanism can be used as one of the means of unfair competition.
The unlawful use of a trademark or designation similar to the extent of mixing with a protected trademark entails certain legal consequences, namely civil, administrative or criminal liability. For the protection of civil rights, the right to demand the termination of a violation of a right, recovery of damages, restoration of business reputation, as well as the removal of a designation similar to the trademark to “the degree of confusion” from the goods or provisions is provided for. The specific method of protecting the violated right is chosen by the person whose rights are violated.
In continuation of the conversation about the components of the brand, it is necessary to take into account that its area of ​​application is limited by the perception and consumer associations that are taking shape in relation to the goods or services of a particular manufacturer. In this regard, the brand name is part of the brand, when the consumer has a stable association with the name of the company which owns this or that brand.
Often the name of the organization is born from the brand. There are cases when an organization registers its name as a trademark. Often a brand becomes part of the brand name. Since the same verbal designations can act as both trademarks and trade names, there are conflicts of rights to these objects of protection. In this regard, the possibility of protecting a company name as an independent object of intellectual property. In legislation, this issue is not well regulated. In practice, protection of a company name is complicated by the absence of a mechanism fixed by law to ensure its uniqueness.
Historically, the emergence of the corporate name institute is associated with the transition in the spring of 1921. to the new economic policy. In the newly created Soviet Union, economic units began to emerge that were required to be called something. In 1927, the “Provision on the Firm” was adopted, which is formally in force now. The Regulation states that in addition to the special name, which allows to distinguish this enterprise from other similar enterprises, commercial organizations must specify the organizational and legal form of the enterprise.
Meanwhile, it is important for the consumer to have the original memorable name, on which he orients himself later in the purchase of goods or services. On the organizational legal form, the consumer draws attention rather rarely.
One of the key issues related to the legal protection of brand names are the grounds and, accordingly, the moment of the occurrence of exclusive rights to use them.
Current legislation interprets this question. By virtue of the provisions of paragraph 4 of Article 54 of the Civil Code of the Russian Federation, the exclusive right to use a company name arises from a legal entity on the basis of registration of such a name in the prescribed manner. In this case, the procedure for registration, as well as the procedure for using company names, is determined by law and other legal acts in accordance with the rules established by the Civil Code of the Russian Federation. According to Article 15 of the Constitution of the Russian Federation, international treaties of the Russian Federation are an integral part of its legal system. In this regard, the provisions of Article 8 of the Paris Convention for the Protection of Industrial Property of 1883 are also applicable, according to which the company name must be protected in all countries of the Paris Convention. The rule of Article 8 of the Paris Convention is also confirmed by the Provision on the company dated July 22, 1927. Clause 10 of which states that the right to a firm arises from the moment when the use of the firm actually began. In this case, the company name is not subject to special registration, regardless of the registration of the enterprise.
By virtue of the foregoing, a special law on company names is needed that would eliminate the problem of ambiguous enforcement.
A brand becomes an object of copyright protection when it was created as a result of the creative work of the author. Property rights to designations that are brands may be transferred under the author's contract. Such contracts may be concluded in relation to the designations already created. However, most often are copyright order contracts, such as the development of a logo or a future trademark. As a rule, this is a pictorial designation.
The most significant component of the brand is its business reputation. To sell yourself profitably, you need to create a good impression of yourself. Without a decent reputation it is impossible to exist in the conditions of the modern market. To win customer loyalty, companies spend huge amounts of money on maintaining and improving their image. And disputes resolved in court are one of the levers of competition.
Total
The brand is governed by a range of rights. In this case, the scope of the brand is much wider than the above brand components. The brand exists for the consumer and is inextricably linked with his idea of ​​the company.
Afterword
In this article I tried to acquaint you with the history of the brand, its components and the problems of protecting its components.
In the next article I will tell you not just about the aspects of the legal protection of delirium, but I will try to tell you about the legal mechanisms for the protection of intellectual property.
Further within a cycle of articles for Habr I intend to highlight such topics as:
- Investor issues in the protection of intellectual property;
- Protection of a trademark consisting only of color;
- Conflicts of rights to a domain name (the most urgent problem of the Internet);
- Discourse on the federal law "On Advertising";
- accounting of advertising costs in order to minimize tax duties.
I would be glad if you choose which topics you need and with which to start earlier, and which ones to leave for later. On some topics I already have materials and they can come out earlier.
Apologies
Unfortunately, the protection of intellectual property is quite complicated, but in the meantime an interesting and important topic. I tried to put it in the simplest possible way, but if there are any incomprehensible moments, ask, maybe I will tell you about something in more detail.
And the last. I am sure there is a huge amount of spelling errors in the text. Please point to them, I will correct.
Thank you all, waiting for your opinions.
Written for Habr and my blog www.infport.ru
Source: https://habr.com/ru/post/38724/
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