Registration and judicial protection of
intellectual property
intellectual property
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Since a trademark is an object of intellectual property, Rospatent as a state body protects it immediately after registration. However, one can legally begin the process of canceling a trademark (trademark, brand, logo) and below we will tell you about the peculiarities of the procedure.
This is the termination of protection of a registered designation and occurs in 2 cases.
If the right holder has not applied for an extension of the trademark term, protection after 10 years is automatically terminated.
If another right holder, who has a trademark with an earlier priority date, has found a confusingly similar or identical trademark, he has grounds to apply to the Chamber of Patent Disputes (CCP) for termination of its registration.
In this case, the trademark loses its legal protection and, without the possibility of succession, is subject to cancellation at the request of any person.
Legal protection of a trademark may be terminated at the initiative of the right holder in connection with the renunciation of the exclusive right to it.
According to the law, if a trademark has not been used for three years, it is allowed to terminate legal protection by judicial procedure. In such a situation, any person who has an interest in obtaining rights to the trademark in question may sue for early termination of legal protection.
A commonly used and therefore well-known brand name cannot be used as an industrial design. In such a case, Rospatent decides on the claim from the person who has expressed interest after the Federal Institute of Industrial Property (FIPS) has conducted an information search.
Rights holders make registrations in the ICS for several classes of goods and services at once, but carry out production only for one of them. At times, this can mislead consumers. Each year, the Intellectual Rights Court (IPC) inspects and considers several hundred disputes in connection with the non-use of the designation.
Article 1486 of the Civil Code states that this is the case if it has not been used within three years from the date of registration. A person who has an interest files an application with the arbitration court and the Chamber of Patent Disputes. Before going to court, it is necessary to write a letter to the right holder with an offer to voluntarily relinquish the trademark or to conclude a contract of alienation.
If the right holder has no evidence of the use of the registered designation or there are no justified reasons why it could not be used (for example, bankruptcy proceedings), the legal protection of the trademark is terminated and with it the exclusive rights are terminated.
Attempts to deprive an individual entrepreneur or a legal entity of exclusive rights are as common as disputes that involve allegations of unfair use of a trademark. It is necessary to soberly assess the position of the competition and understand whether it is illegal.
Early termination of a trademark can be prevented if the right holder decides to protect it. To this end, he will need documents that will help prove the use of the trademark for its intended purpose or impossibility to use it for objective reasons.
To defend your rights in court, you can contact the patent office. Our lawyers and patent attorneys will support you, assess your position and strengthen it to preserve your rights.
An entrepreneur or an organization whose purpose is the early cancellation of a trademark can act as an interested party. Thus, the initiators of the procedure may be:
The proof is the absence of a designation:
In addition, the silence of the right holder in response to the claim is also regarded as an admission of non-use of the brand. The exception is situations where there is evidence of reasons beyond the control of the right holder, for which he could not respond to the statement of claim and participate in court.
The applicant must bear in mind that in court he will have to present evidence of his interest in the annulment of the trademark. In practice, an extract from the Unified State Register of Legal Entities will be required, which will prove overlapping activities, contracts on deliveries or services. Preparation should be done in the pretrial order. The burden of proving the use of the trademark lies on the right holder.
Yes, you can. To do that, you have to file a claim to the Court for Intellectual Rights and prove that you have an interest and a competitor does not use the trademark more than 3 years from the moment when he decided to register it. In pre-trial procedure you should send a letter to the right holder suggesting voluntary abandonment of the trademark by filing an application to Rospatent or its alienation to an interested person.
As a preparatory measure, it is necessary to collect evidence of its lawful use and the absence of signs of unfair competition in your actions.
After the termination of the company's activity, it is necessary to submit a corresponding application to Rospatent.
The following are used as documentary evidence: witness statements, data from the website where the trademark was used, advertising and accounting documents.
Articles 1248, 1483, 1486, 1500, 1501,1512, 1513, 1514 of the Civil Code are used for disputes.
The remote filing of the petition is done by sending a postal correspondence to the relevant authority, which schedules the date and time of the hearing and then notifies the parties by mail and through the publication in the register on its website. Three months are allocated for the appeal of the decision from the moment of its pronouncement (Art. 198 APC RF).
It is necessary to extend its protection for the last year, as well as to pay the state duty 14000 rubles (including 30% discount for electronic filing).
Three years after trademark registration.
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