Means of individualization of a legal entity belong to the category of intellectual law. There is a lot of plagiarism in the world: books, articles, plots, music tracks, etc. The field of marketing is no exception. “Parasitic competition” and the use of someone else’s brand are the most common cases in the business world. In more detail about what are means of individualization and how they are legally protected, we will discuss further.
The concept
In the world of competition, each subject wants to "stand out", to be visible among other firms that produce (provide) a similar product (service). The means of individualization serve these purposes.
The Civil Code of the Russian Federation does not give a generalized official name, but only describes their individual types. It is a mistake to use the concept of “means of individualizing the results of intellectual activity”. For example, a similar phrase is used for a computer program, some bestsellers, films, etc. They are protected by copyright laws and have nothing to do with the economy.
To make this more clear, we give an example. The famous Harry Potter books in the English edition were published with a specific cover, which depicted the actor who played the famous literary character. The coat of arms of the Hogwarts school was also present. This cover, in conjunction with the novel, falls into the category of “means of individualizing the results of intellectual activity”. Copying the text itself without this “shell” will also infringe on copyrights. But already the claim for material damage will be filed by the author of the novel, and not by the company publishing it.
We’ll talk about the means of individualization of a legal entity.
Kinds
The Russian legislation provides for four types:
- Brand Name
- Trademarks.
- Commercial designation.
- Appellation of origin.
The geographical "homeland" of the product does not give exclusivity to the manufacturer for the right to use. This category is used to protect consumers from false information.
"Where are the woods from?"
We give an example. Often, honey producers can write “Made in Altai” on their products. It is believed that this is one of the ecologically clean regions of our country. Products with such labeling will be in greatest demand among food product groups.
But the bees "worked" in Chelyabinsk, where there are many metallurgical enterprises. Substitution of the place of origin of goods misleads consumers.
No one has the exclusive right to use the “Made in Altai” labeling. Any company that manufactures products in this region can apply it to packaging.
Exclusive right
The Civil Code provides for certain individuals (owners) to use exclusive rights to means of individualization. They can use them as they wish:
- Distribute products with a specific logo.
- Prohibit or permit the use of trademarks.
From what moment does the exclusive right take effect?
Means of individualization arise for various reasons. Depending on this, a certain type of exclusive right is given to someone upon fulfillment of certain conditions:
- Use of a company name - after state registration of legal entities persons and its inclusion in the register.
- The right to brands, trademarks, appellations of origin - after approval by Rospatent.
- On a commercial image - at the time of gaining fame in a certain territory.
After passing all the procedures, the exclusive right to use the logo, trademark, name, etc. This means that without authorization from the owner it is illegal to use any patented designation in advertising, on products, on Internet resources, etc.
Duration of exclusive right
But it is a mistake to say that it is enough to “stake out” a product brand in Rospatent, and the exclusive right to it is given for life. A trademark expires after 10 years if it is not renewed.
The right to a commercial designation will cease to be valid after the loss of publicity of a company in a certain territory. The company name ceases to be valid after the liquidation or reorganization of the enterprise.
How to protect exclusive rights to means of individualization of goods, services?
You can protect the right to use a trademark or name in the following way:
- Appeal to the Federal Antimonopoly Service.
- Through the court.
- Appeal to Rospatent.
The last state body on the list deals with controversial issues related to the application of TK. For example, one company suspected another brand in plagiarism of its brand. But she denies her guilt and claims that their logo is developed independently. The way out is an appeal to Rospatent, which will check all the circumstances of the incident and send materials to the court.
The antimonopoly service protects manufacturers from unfair competition (illegal “copying” of products, trademarks, etc.).
In any case, an entrepreneur in respect of whom the exclusive right to means of individualization has been violated may apply to the court to compensate for material or other harm (for example, loss of reputation).
Entity
Individualization of a legal entity is carried out by determining the location and name, which must necessarily include the legal form. For example, Avangard LLC, or Municipal Unitary Enterprise Gorseti, etc.
In addition, individualization refers to goods and services, trademarks and brands. More on this.
Trademark or mark: what is the difference?
A trademark is a mandatory verbal way of individualization. Includes:
- Product name.
- Manufacturer Information
- Compliance.
- The composition and properties of the products.
- Other mandatory information (e.g. hazard and safety information).
A trademark is a description of a product on packages, labels, etc. In other words, information about what we are buying.
A trademark (brand) is a designation that distinguishes one product from another similar. He enjoys legal protection and is registered with Rospatent. For example, Nescafe coffee, Babaevsky chocolate, etc. May contain verbal, graphic, three-dimensional or other other information, but does not have data on the product itself.
“Apple” or “Beloved” - what cannot be registered?
We have already said that the trademark belongs to the means of individualization and the results of intellectual property. But can everything be registered as a brand? Legally, there are restrictions on elements that cannot be used:
- A name that has come into general use when designating a certain category of goods. For example, “Juice”, “Coffee”, etc.
- Commonly used symbols and terms.
- The name of the quality of the goods, their characteristics, etc. Delicious, Fresh, etc.
- The exceptional form of a product that defines its property. For example, one image of a ball from the manufacturer of a given product.
All of the above elements can be included in logos or names, if they are not dominant in it.
Also, signs that look like state symbols cannot be used. They can mislead ordinary citizens.
In accordance with international agreements in trademarks it is forbidden to use:
- Flags, emblems of other countries.
- Official abbreviations of international organizations. For example, UN, OSCE, etc.
- Official seals, awards, assay marks, etc.
In addition, if the logo has all of the above properties that are mixed with them, these also can not be used. For example, a slight color change in the UN symbol, etc. They can be used as an element of the brand only with the official consent of the copyright holder.
It is forbidden to register cultural heritage elements, immoral images, as well as those that can be misleading as TK. Also, logos that are already in use in other countries cannot be registered.
The image can be used in another product group. For example, the use of a schematic rainbow in the logo of a charitable foundation is allowed to be used when creating a brand of a confectionery factory.
It is also forbidden to register means of individualization of goods:
- If their name contains known surnames, names, pseudonyms.
- The image contains portraits and faces of famous personalities without the permission of these people or relatives.
- They are based on works of science, art, etc.
Registration of TK
In order to officially create your own trademark, you must:
- Define the objectives of TK.
- Design and create a logo.
- Check in the database of Rospatent for the presence of similar registered signs.
- Correct if the logo coincides with others.
- Collect a package of documents for registration of TK.
- Submit data to Rospatent.
- Get security documents.
- Put the trademark on the accounting of intangible assets of the enterprise.
Of course, all procedures require money and time, but the result will be a guarantee of protection of property rights.
Errors in the creation and registration of TK
The main mistakes that entrepreneurs make when registering TK:
- Lack of thought over the purpose of using the logo.
- Its flaw.
- Savings at registration. One procedure excluding lawyers costs about 30 thousand rubles. Many save and create logos with an image and an inscription in a single monolith. A separate image of one from the other will not violate the right to the results of intellectual activity and means of individualization.
- Save time searching for identical and similar images. Do not rely on Rospatent.