The modern market is saturated with limitless assortments of goods and services. Many of them are equally good in terms of quality and price, variety of variations, and response to consumer requests. Therefore, more often than not, he makes his choice based on the brand he knows. From here, it is important for the manufacturer to have a trademark that would make it recognizable in the ocean of offers from competitors. But from the latter, as well as all kinds of scammers, lovers of using someone else's good name, a threat always comes to a symbol, a brand. Therefore, in this article we will talk about trademark protection. Its specific methods, related issues - further.
What is it?
TK (trademark) - a designation that is designed to individualize goods and services (definition of Article 1477 of the Russian Civil Code). This is the full legal name of the subject of our conversation. For services, a synonym is a service mark.
In the business sphere, you can find analogues of "trademark", "trademark", among marketers - "brand". These terms will not have legal force.
Types of Trademark
If you decide to register a trademark, then keep in mind that today it can be represented in several varieties:
- Verbal. Letters, words, symbols, written in a specific font, in a specific color.
- Fine. Symbol, item, drawing, graph, etc.
- Combined. This is a logo - graphics + text.
- Volume. Sign, symbol made in three dimensions.
- Sound. A combination of sounds, melody, song and so on.
- Olfactory. Trademark right is a certain smell. True, Russian laws do not yet represent such a choice.
Rights after registration of a mark
Let’s take a look at the possibilities of the trademark holder dictated by law:
- The widespread use of the symbol - on product packaging, in advertising, business papers, on the product itself and so on.
- Transfer of the right to use (or sale) to a third party.
- A trademark is entitled to act as a bank pledge.
- The owner of the symbol may require other individuals and legal entities to observe their exclusive rights to this text, image, logo, etc. Including the issue of labeling of such products.
Symbol Registration
In order to be able to protect his symbol, logo, the copyright holder must first register a trademark. And it is in the territory of the country where he wants to use it.
It follows that protection is possible only within the borders of the state where the registration took place. And what about global brands - international trademarks? For this, they turn to the IKTU - the International Classifier of services and goods for the registration of marks. Today it combines 34 classes of products and 11 classes of services.
Now let's move to our country. In the Russian Federation, the Federal Institute for Industrial Property (Federal State Budgetary Institution FIPS) deals with such issues. This is a branch of Rospatent. The trademark will be registered for 12-15 months, after which you will receive the right to use and protect it for 10 years (do not forget - in Russia). It can be extended an infinite number of times.
But before applying for a trademark, carefully study whether this text, image, object or logo is being used by someone else. Indeed, today in the Rospatent database there are about 500,000 characters! Your not only should not copy another, but not even be like him.
Trademark verification will be carried out by the patent office. Specialists will find out if there is anything like this in the Russian base. They help the applicant with the registration of the necessary documents.
Symbol Protection Restriction
You need to understand that, becoming the copyright holder of a trademark, you will not get the possibility of total control among competitors, the media, the Internet.
So. You can control the use of your symbol by third parties under the law on trademarks only in such cases:
- Production, labeling of products and their packaging, sale, advertising and transportation.
- Use as a service symbol.
- Mention in the documents that enter the goods into circulation.
- Use in various types of advertising and promotion.
- Use on the Internet, in the domain name of the site, email address and so on.
In this case, the owner of the mark will not have the right to control in such cases:
- The symbol was used by a third party in their own interests, not related to income generation.
- The mark was operated by a person who received the written consent of the owner of the image, logo and so on.
- The name was mentioned in connection with the activities of the copyright holder without the purpose of advertising the latter.
Rights violation
But what is a violation of trademark rights? Cases of unauthorized use of the designation (both identical and very similar to it in a number of ways) for marking products of another manufacturer (or providing services of another supplier).
It is important that the incident occurs precisely in Russia (if you registered the mark with Rospatent), as well as during the period of your rights to the mark.
Responsibility for the violator will come in accordance with the fact of using someone else's trademark. Damage to them must be compensated in the amount required by the copyright holder. The amount is based on confirmed losses and the amount of lost profits.
Under Russian law, courts have the right to resolve the following trademark disputes:
- Violation of the exclusive right of the owner.
- Early termination of protection of the designation due to its use on goods that do not meet the declared characteristics.
- Conclusion and execution of an agreement related to the assignment, sale of rights to a symbol.
Trademark protection can be carried out in three main types - in the framework of criminal, administrative and civil law. We will get acquainted with them in detail.
Civil Protection
Arbitration courts hear such cases. By agreement of both parties, you can turn to the assistance of arbitration.
What is written in the lawsuit? The affected party demands the cessation of the illegal use of its trademark, as well as compensation for the losses it has suffered. In some cases, it is impossible to imagine and prove the magnitude of this sum. Then you can insist on monetary compensation. Russian law determines its value from 10 thousand to 5 million rubles - specific figures are already set by the court.
As a continuation of the restoration of their rights - the publication of a decision by a judge in the media. It helps in rebuilding your good name. Moreover, publications are made in those sources where advertising was ordered by the offender.
The defendant is both one person and a group. It is important to know that it is possible to hold accountable not only the one who manufactured products under your name, but also helped to sell it.
Administrative Legal Protection
Trademark protection using administrative law can be implemented in the following ways:
- Submission of an objection to registration by the infringer of a similar or identical designation to the Chamber of Patent Disputes.
- Written appeal of the true copyright holder to the MAP (Russian Ministry of Antimonopoly Policy) with a statement on the fact of violation of the requirements of fair competition.
- Filing a complaint with the body that directly controls the activities of the offender (if any).
Consideration of complaints, applications will be made if they are sent by the true owner of the mark with the attachment of documents confirming ownership.
The antimonopoly authority is contacted at the place of the offense or at the place of registration of the fraudster. The only exceptions are cases when the case is examined directly by the MAP of Russia, which will conduct a trademark check. Responsibility for the violator comes in the form of a warning and payment of a fine to the injured party.
Customs Protection
It is important to inform about this type of trademark protection. Customs authorities can carry it out when trying to export / import into Russia products that are marked with the logo of a world famous manufacturer.
The actions of customs officers are regulated by the Regulation on the protection of intellectual property rights by customs authorities, which was introduced by Order of the State Customs Committee of the Russian Federation No. 1199 (2003). Workers in this field can stop the production of counterfeit goods upon written request from the true copyright holder (or his representative).
Customs authorities also maintain an Intellectual Property Register. If they have discovered administrative offenses that are not within the scope of their own authority, then the case will be transferred to structures directly involved in such matters.
Criminal defense
It is important to note that violators of the rights to use a trademark may also face criminal punishment. Moreover, both for unauthorized use of an identical image, and similar to it.
Art. 180 of the Criminal Code additionally introduces liability for the use of warning labels, if such an image has not been registered.
Self defense
What is it all about? Rightholders reasonably believe that it is easier to prevent a violation of rights than to spend time on proceedings with persons who have violated the law against them.
Therefore, methods are selected that protect the trademark from counterfeiting, complicate its copying. It is protection by figured capacities, holograms and so on. Such an image is not only difficult to fake, but also very expensive. However, for the copyright holder himself, such protection results in additional costs.
Internet protection
Not only much of our life has moved into virtual reality. Violations related to the use of another's trademark also go there. What does this mean for the copyright holder? If he intends to conduct his work, promotion on the Internet (and without it successful business is impossible today), then he will not be limited to registering a trademark. In addition, he must also protect the following:
- Domain name (registered as a trademark).
- Original design of your own website (certificate for a technical sample).
- The code that is used by the foundation to create the site (registered as a program).
- Articles and images (registration in copyright communities).
There are several ways to protect your trademark today. It is administrative, civil, criminal, through customs. Some copyright holders seek to prevent the problem by turning to self-defense.