The right to a trademark and the right to a service mark
The means of individualization of manufactured goods include trademarks, and the works or services performed - service marks. The Institute of Law for these signs is enshrined in § 2, Ch. 76 GK.
According to the definition contained in paragraph 1 of Art. 1477 ГК, under trademark is meant a designation that serves to individualize the goods of legal entities or individual entrepreneurs. A exclusive right is acknowledged by the appropriate certificate (article 1481 GK) on the trademark.
The GK rules on trademarks are applied respectively to service marks. According to the norm of paragraph 2 of Art. 1477 GK service mark is a designation that serves for individualization of works performed by legal persons or individual entrepreneurs or services rendered by them.
The owner of the exclusive right to a trademark may be a legal entity or an individual entrepreneur (Article 1478 of the Civil Code) .
According to the norm of Art. 1479 CC in the United States has an exclusive right to a trademark, registered by the federal executive authority on intellectual property (Rospatent), as well as in other cases provided for by an international treaty of the United States. In accordance with Art. 1480 GK state registration of the trademark is carried out by Rospatent in the State Register of Trademarks and Service Marks of the United States (State Register of Commodity signs) in the manner established by Art. 1503 and 1505 GK.
A trademark certificate (article 1481 GK) is issued for a trademark registered in the State Register of Trademarks. This certificate certifies:
1) the priority of the trademark;
2) the exclusive right to a trademark in relation to the goods specified in the certificate.
verbal, pictorial, voluminous and other (eg, sound) designations or their combinations can be registered as trademarks. A trademark may be registered in any color or color combination (item 1482 GK).
Grounds for refusal of state registration of the trademark are provided in art. 1483 CC. In particular, state registration as trademarks of notations representing or containing elements is not allowed:
• are false or capable of misleading the consumer about the product or its manufacturer;
• Contrary to the public interest, the principles of humanity and morality.
Also, designations that are identical or similar to the degree of confusion may not be registered as trademarks:
• with trademarks of other persons registered for registration (Article 1492 GK) for homogeneous goods and having an earlier priority if an application for state registration of a trademark not withdrawn or recognized as withdrawn;
• the trademarks of other persons protected in the United States, including, in accordance with the international treaty of the United States, in respect of similar goods and having an earlier priority;
• trademarks of other persons recognized in the order of well-known in the United States by trademarks in homogeneous goods.
Registering as a trademark for homogeneous products a designation that is confusingly similar to any of the trademarks mentioned above, only with the consent of the copyright holder.
The designations that are identical or similar to the degree of confusion with the appellation of origin of goods, protected in accordance with the Civil Code, can not be registered as trademarks in respect of any goods - and in respect of homogeneous goods - with the company name, commercial designation, the name of the selection achievement. On the grounds provided for in Art. 1483 Civil Code, legal protection is also not granted to designations recognized by trademarks in accordance with with international treaties of the United States.
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