Every company striving to stand out in contemporary highly competitive environment uses various marketing designations in its activities – corporate name, commercial designations, trademarks, etc. The purpose for such use is to demonstrate the individual company and the results of its activities vividly. In accordance with the Civil Code of the Russian Federation, such designations refer to the means of identification.
Means of identification are intended to distinguish goods or services from similar ones, as well as to distinguish and differ manufacturers among competitors.
The necessary condition for protection of means of identification is the proper reservation of your rights. Otherwise, the company becomes vulnerable and may be seriously affected by the actions of unfair competitors (may incur losses, lose its trademark, etc.).
What particular means of identification exist, and do they require any registration? What happens in case of interference between the same symbols?
Before answering these questions, the difference between the means of identification should be noted.
Means of identification:
- corporate name,
- commercial designation,
- appellation of origin of the goods (AOG).
Corporate name is a designation used by the legal entities for performing their activities (act in civil circulation). As a rule, exactly this mean of identification the company has for the first place.
Any corporate name includes two parts – the legal form and the name (brand) of the company. The abbreviated company name in Russian is allowed.
Example: Full corporate name - Limited Liability Company "Steering wheel and wheels".
Abbreviated corporate name - Steering wheel and wheels, LLC.
Besides, it is possible to have corporate name (both full and abbreviated) in the languages of the peoples of the Russian Federation or foreign languages.
- The corporate name is stated in the Articles of Association and included in the State Register of Legal Entities upon registration of a legal entity.
- The corporate name is registered simultaneously with the registration of the legal entity with the tax authorities. A separate registration procedure is not required.
- The tax authorities do not check the corporate name for uniqueness (identical names are possible).
The right in this mean of identification is terminated at the moment of liquidation of the legal entity or official change of the corporate name.
Commercial designation – is a designation that is not a corporate name and is used for identification (distinction) of commercial, industrial and other enterprises.
Example: Commercial designation – Auto Repair Shop "Steering wheel and wheels".
Legal entities performing business activities and individual entrepreneurs can be the holders of a commercial designation.
- The commercial designation is not included in the constituent documents and into the unified state register of legal entities.
- Registration of a commercial designation is not required.
- The exclusive right in a commercial designation arises from the moment of its actual use.
- The exclusive right is terminated, if the holder does not use the commercial designation continuously for a year.
How to confirm the right in a commercial designation, if there is no any registration? It is desirable to have documentary evidence of the fact of the beginning of application of the commercial designation. By having such documents, it will be much easier to prove the rights in the event of any dispute.
Not any name or sign used without any registration may be considered a commercial designation. Such a designation shall have sufficient distinctive character to distinguish the company (shop, auto repair shop, barber shop, etc.) from the totality of similar ones. Besides, a commercial designation shall be known within a certain territory.
Trademark (service mark) – is a designation used for identification (distinction) of goods, works or services. Trademarks can be verbal, visual, three-dimensional, sound, combined, etc.
Example: verbal trademark – Steering wheel and wheels,
visual trademark – symbolically-rendered (fantasy) image of a steering wheel and wheels,
combined trademark – symbolically-rendered image + verbal element "Steering wheel and wheels".
The main requirement to a trademark is its uniqueness.
Only legal entities and individual entrepreneurs can own a trademark.
- A corporate name is registered with Rospatent.
- The exclusive right arises when the trademark is entered into the state register of trademarks.
- The exclusive right is terminated upon the expiration of the registration period (10 years after the date of filing the application, but can be extended for another 10 years, the number of extensions is unlimited), or in the case of early termination of legal protection.
- The trademark holder may transfer the right to use the trademark under a license agreement (trademark lease), or assign the trademark to another person in whole or in part (trademark sale).
Please, pay attention:
- the trademark monopoly applies to those goods and services for which the corporate name has been registered,
- one company may have several trademarks, among other - in different colors, in different languages, etc.
- the trademark is protected in its registration form,
- in case of violation of its rights, the trademark holder may demand compensation in the amount of 10,000 to 5,000,000 rubles, or twice the cost of counterfeit products (the goods bearing the trademark illegally placed), or twice the cost of the right to use the trademark.
Appellation of origin of the goods
Appellation of origin of the goods (AOG) - is a designation used for identification of goods having special properties related to natural conditions or human factors specific for a particular area.
AOG is always a designation closely related to a specific locality, or a geographical indication. This designation may consist solely of the territory indication, or include the product name.
Example: "Gorodetskaya rospis", "Vologodskoye maslo", "Kislovodskiy farfor", "Khokhloma".
AOG copyright holder is the manufacturer of the corresponding product. At the same time, AOG may be owned by several persons producing similar goods in the same territory.
- AOG is subject to state registration with Rospatent.
- The exclusive right arises after entering into the state register of appellations of origin of the goods.
- The exclusive right in AOG is terminated, if the conditions particular for this geographical object disappear and it is impossible to manufacture the product having special properties.
- The validity of AOG certificate is 10 years, also with the option for extension.
- Disposal of the exclusive right in AOG is not allowed (license agreements or assignment agreements are not permitted in respect of this means of identification).
One company may at the same time have all or several means of identification, which are often closely intertwined with each other – they are part of each another.
- Commercial designation may include the elements of a corporate name and a trademark.
- A trademark may contain both a commercial designation (its particular elements) and a corporate name (part hereof).
- AOG holder may include this name in its trademark.
What are the most "strong" means of identification?
Traditionally, a trademark is considered to be such a mean of identification, since:
- it should meet the strict requirements established by the Civil Code of the Russian Federation, in terms of its distinctive character,
- is subject to special state registration,
- has stronger protection, in comparison with other means of identification.
A trademark is always a unique designation protected on the territory of the whole country (in the case of international registration – on the territory of several countries). While the existence of similar and even identical corporate names and commercial designations (names of restaurants, shops, beauty salons and other enterprises) is quite common. In this regard, the protection of these means of identification is weaker than that of trademarks.
That is why it is important not to postpone the state registration of logos, slogans and other designations used by the company to identify (distinct) its products, works and services as trademarks.
Interference between the means of identification
Interference between similar (identical) means of identification occur increasingly frequently. Certainly, some of these conflicts arise unintentionally. At the same time, to the great extent they are the disputes where one of the parties intentionally uses third party's means of identification, trying to increase its competitive advantages.
The legislation prohibits to use designations confusingly similar to other means of identification for identical goods and services, if as a result of such use there is a risk of confusion (mess) for a consumer between goods, works, services of competitors' enterprises.
In case of a dispute, the general rule applies – the priority is given to that mean of identification having the earlier right (the principle of precedence of rights). However, each situation is specific, so if a conflict situation occurs, you need to contact experts in protection of the means of identification.
When proving your rights in a particular designation, you should be sure that your means of identification meet the requirements of the legislation, and the rights are properly registered.