of February 28, 2017 No. 01-06/521
Economic courts of Ukraine
About some questions of practice of application by economic courts of the legislation on protection of the rights to intellectual property items
According to the procedure of information and for accounting in hearing of cases the overview of the disputes over the cases connected with protection of the rights to intellectual property items on which judgments are reviewed in cassation procedure by the Supreme Economic Court of Ukraine solved by economic courts of Ukraine goes.
1. For the commercial (corporate) name the principles of the validity, permanency and exclusiveness are peculiar. That is its use shall not have one-time character and shall take place just for the period of the address of the claimant with the corresponding claim in court.
Subject of action in this case is protection of goodwill and the commercial name.
The question of legitimacy of satisfaction with courts of the previous instances of the claim regarding motivation of the defendant to stop use by any method of the commercial (corporate) name of the claimant which the corresponding combination of words in Ukrainian, in Russian and abbreviations is became the basis for cassation consideration.
In reasons for the declared requirements the claimant referred to the fact that full name of the defendant in the Ukrainian and Russian languages, and also its abbreviated name are similar to commercial (corporate) names of the claimant (on which the claimant has priority) so that they can be confused, and it misleads consumers of goods.
By results of consideration of the writ of appeal Supreme Economic Court of Ukraine cancelled judgments of the previous instances regarding the dispute resolution on protection of the rights of the claimant to the commercial (corporate) name and submitted the case on new trial to Trial Court, considering such legal basis.
By Article 90 of the Civil code of Ukraine (further - the Civil Code of Ukraine) it is determined that:
- the legal entity shall have the name containing information on its form of business; the legal entity can have the abbreviated name except full name;
- the legal entity who is entrepreneurial society can have the commercial (corporate) name;
- the name of the legal entity is specified in its constituent documents and is entered in the Unified state register.
According to part one of article 27 of the specified Law of Ukraine "About state registration of legal entities and physical persons entrepreneurs" (in the edition operating at the time of decision making in the matter of No. 910/20889/13) with the bases for refusal in carrying out state registration of the legal entity is, in particular availability in the Unified state register of the name identical to the name of the legal entity who intends to be registered.
By article 8 of the Parisian convention on protection of industrial property of 20.03.1883 it is determined that the trade name is protected in all countries of the Union without obligatory application or registration and irrespective of whether it is part of the trademark.
According to part one, third and fifth article 159 of the Economic code of Ukraine (further - the Civil Code of Ukraine) the subject of managing - the legal entity or grazhdaninpredprinimatel can have the commercial name; is subject to legal protection both the complete, and reduced commercial name of the subject of managing if it is actually used by it in economic circulation; person using someone else's commercial name upon the demand of its owner shall stop such use and pay the caused damages.
Therefore, concept the name of the legal entity and his commercial (corporate) name have various legal filling.
According to Item 78 of the resolution of plenum of the Supreme Economic Court of Ukraine of 17.10.2012 No. 12 the commercial (corporate) name needs to be distinguished from the name of the legal entity (part one of Article 90 of Civil Code of Ukraine); the name of the legal entity is not object of intellectual property right as the legal relationship connected with its use are regulated mainly by regulations of the corporate legislation.
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