In a market economy, the issues of effective protection of rights to various results of intellectual activity and methods of their protection are increasingly of interest to market participants. The exclusive right to a trademark is a valuable intangible asset, in the acquisition of which an increasing number of business representatives are interested. All this is an excellent basis for the formation of mechanisms and methods of counteracting unfair competition associated with the acquisition and use of these rights.
A trademark is a designation that serves to individualize the goods of legal entities or individual entrepreneurs, to which an exclusive right is recognized.
Unfair competition is defined in clause 9 of Art. 4 of the Federal Law "On Protection of Competition" as any actions of economic entities (groups of persons) that:
The Presidium of the FAS Russia notes that in order to establish an act of unfair competition, it is necessary to have all the signs of unfair competition provided for in paragraph 9 of Art. 4 of the Federal Law "On Protection of Competition", in conjunction with special signs of the composition of the violation provided for by Art. 14.4 of the Federal Law "On Protection of Competition".
In order to prove a violation of the exclusive right to a trademark, it is enough to establish the existence of a hazard, and not a real confusion of designations in the eyes of the consumer. Moreover, in order to establish the existence of a risk of violation of the rights of the copyright holder, the court does not need to carry out an appropriate examination, but it is enough to resolve the issue from the standpoint of an ordinary consumer, since the issue of mixing controversial designations is a matter of fact.
To qualify the actions of an economic entity as violating the prohibition established by Part 1 of Art. 14.4. Federal Law "On Protection of Competition", it is necessary to establish a set of actions:
Separately, the acquisition of the right or use does not constitute a violation under Art. 14.4 of the Federal Law "On Protection of Competition".
The main signs of unfair competition established in the Federal Law "On Protection of Competition" are:
The copyright holder under Russian law has the right to:
The following are the most relevant situations and opportunities that copyright holders have in case of making a decision to actively protect their violated rights:
It seems that the most effective and convenient is the following algorithm of actions of a person whose rights have been violated by the trademark right holder who has committed unfair competition:
So, in the case of an initial appeal to the antitrust authority, the consideration of the case increases to the stage of the administrative order, since the right holder can in any case declare to the Intellectual Property Rights Court about invalidating the decision of the antitrust authority.
If there are no signs of unfair competition in the actions of a person, but there are grounds for reporting an abuse of the right, the person should:
It should also be noted that due to the development of the Internet space and the gradual transition of the activity of doing business online, the administrations of social networks, marketplaces are increasingly going to productive cooperation with copyright holders, thereby reducing the time and labor costs to suppress illegal actions aimed at violating the rights of copyright holders. Such cooperation has a positive effect on reducing the number of violations of trademark rights, including.
Thus, today there are several ways to protect a person whose right has been violated by registering a trademark. Depending on the actual circumstances, this or that method may have advantages in terms of a faster and more efficient dispute resolution.