Legislators have allowed any person who earns his own business to register trademarks and service marks, creating his own brand. From June 28, 2023, not only entrepreneurs and legal entities will be able to individualize their products or works/services, but also citizens. An expert told aif.ru about what means of individualization are, why register them, and who can do it.
What is a trademark and a service mark, how do they differ?
< p>Trademark and service mark — These are means of individualization that allow the consumer to distinguish one product from another, one service from another. Simply put, a trademark and a service mark allow you to distinguish one specific manufacturer from a huge number. “The use of such distinctive signs allows consumers to understand exactly who they want to work with and from whom to buy. The difference between a trademark and a service mark is very easy to explain
simple: trademark — distinctive designation of the goods, and the service mark — works or services. For example „Prostokvashino“ and „Kozelskoe milk“ — trademarks of dairy products of specific manufacturers, and the names of mobile operators: MTS, Megafon, Beeline — service marks, — lawyer Angelina Malysheva explained to aif.ru.
Why do you need to register a trademark/service mark?
According to the lawyer, any entrepreneur interested in running a successful business should make his product individual. Your own distinguishing mark, — first of all, an important tool for developing a personal brand. In addition, its use allows you to sell goods and services more efficiently.
“It is important to go through the registration procedure, including to protect the business from competitors, as well as to avoid claims from other copyright holders. Obtain a trademark registration certificate — means to assert your rights to the mark and be able to protect them if someone decides to use your mark without permission or “borrow“ its design», — explained Malysheva.
The expert clarified that the illegal use of a trademark or service mark faces administrative liability under Art. 14.10 of the Code of Administrative Offenses of the Russian Federation in the form of a fine with confiscation of products on which there is a designation, and compensation may also be collected under Art. 1515 of the Civil Code of the Russian Federation — from 10 thousand to five million rubles or in the amount of two times the cost of the goods on which the disputed trademark is placed.
Who can register a trademark/service mark?
Prior to the entry into force of the amendments to Part IV of the Civil Code (the Civil Code of the Russian Federation), only individual entrepreneurs and legal entities can become the owner of a trademark or service mark. From June 28, 2023, this right will also be granted to citizens.
“Despite the fact that the mention of individual entrepreneurs was removed from the articles about means of individualization, replacing them with the generalized concept of “citizens”, I doubt that Russians without any status, for example, a payer of tax on professional income, will be able to register a trademark or service mark — self-employed. The law still associates the need to individualize goods, works or services with business activities, and only legal entities, individual entrepreneurs and self-employed people can receive income from such activities — without registration it is illegal», — Malysheva commented.
What happens if there is already a similar trademark or service mark?
As the expert explained to aif.ru, in order to register a trademark or service mark, you must contact Rospatent — organization under the Federal Institute of Industrial Property (FIPS). When submitting an application, you must indicate the class of MTCU (International Classification of Goods and Services) to which the trademark or service mark will relate, and within this group, Rospatent checks for similarity with other marks of the same group of goods or services that have already been registered.  ;
“It happens that Rospatent sees no obstacles for registration — then, if there is a threat of violation of the rights to the means of individualization, the right holder can file objections to Rospatent, pointing to similar designations, or to the court. When considering a dispute in court, an examination of the identity of trademarks and their similarity to the point of confusion must also be carried out — Based on its results, the court makes a final decision. If the similarity to the point of confusion is established by Rospatent — registration of means of individualization will be denied. If the court comes to the conclusion that the rights of the owner of the trademark or service mark are infringed, the decision of Rospatent will be invalidated, and the registration record will be canceled, — explained Malysheva.
Who can inherit a trademark/service mark?
The lawyer said that from June 28, 2023, anyone can become a trademark owner on the basis of a certificate of right to inheritance. “Previously, it was necessary to obtain the status of an individual entrepreneur (IP) or a legal entity, because the law associated the presence of a trademark and the possibility of its registration only with entrepreneurial activity in a particular industry. In the event of the death of the trademark owner, his heirs, in order to inherit the means of individualization, were forced to register as an individual entrepreneur or transfer the rights to another person who already has such a status, — summed up Malysheva.
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