Elena Voskresenskaya,
Doctor of Law, associate Professor
Peter
the Great Saint - Petersburg Polytechnic University
Legal protection business name
as an effective tool of economic entities management
The article considered novel of the domestic
legislation of the corporate name of the legal entity; is determined by the
content of the right to name: the truth, oneness, signs of the right to name:
absolute, perpetual, inalienable. Particular attention is paid to the materials
of the Arbitration Court of the practice of intellectual property rights in
disputes relating to the infringement of the right to a company name.
With the development of market relations increases the value of a trade
name. According to articles 1473 and 1475 of the Civil Code of the Russian
Federation (hereinafter - the Civil Code) corporate name defined in the
constituent documents of a legal entity and is included in the Unified State
Register of Legal Entities under the state registration of legal entities.
Current Russian civil legislation does not contain a direct determination of
the trade name, but rather points to its details. In the legal literature
called by name, to which a commercial entity involved in the civil circulation
and which identifies this subject in a number of other members of turnover [1].
The main purpose of the name is the individualization of direct participants in
civil commerce and business activities. To achieve this goal, the law imposes a
trade name, a number of requirements, which are usually estimated in the
literature as "the principles of the company" [2]. Firstly,
the company name should reflect its true legal status and not to mislead other
participants in civil turnover. As
noted
by
A.
Sergeev, communication guiding principle is "the true principles of the company" [2].
Secondly, the literal interpretation of the law does not exclude the use of the
members of business and completely identical to the trademark brand names, if
it does not lead to a conflict of their interests and not misleading third
parties. In other words, assessing the degree of similarity of trade names and
may participate in the turnover under the same name, it can
not be limited to only direct comparison of own brand names. This is a
rather formal approach, remote from the actual meaning of the law. Thus, the
question of permissible or impermissible degree of mixing of the two brand
names to be decided each time on the basis of the factual circumstances of each
situation. Third, the necessary degree of individualization of participants in
entrepreneurial activity can be achieved brand name if it remains unchanged for
as long as it enjoys the subject of such activities retains its organizational
and legal status. This requirement is reflected, according to A. Sergeyev [2] on the
"principle of the company persistence".
The decree of the Presidium of the Court of intellectual
property rights on 4 September 2015 № SP-23/25 stated
that "in accordance with paragraph 3 of Article 1474 of the Civil Code is
not allowed to use a legal entity corporate name which is identical trade name
of another legal entity or similar to it the degree of mixing, if these entities
are engaged in similar activities and corporate name of the second legal entity
has been included in the Unified earlier than the official name of the first
legal person" [3].
Individual words and phrases can be included in the
business name only with certain conditions established by law. Court for
intellectual property rights has decided that "the organization legally
held responsible for the fact that it is not an organizer of trade, licensed
trade system, uses in its company name the words" trading system".
The reason the decision was the fact that, according to the legislation on
organized trading trading system is the organizer of
the trade, licensed trade system. "Trading system" or "trade
organizer" Brand Name of the trading system must contain the phrase. Other
persons can not use these phrases derived from these
words and combinations of them in its corporate name and (or) in
advertising" [4].
Brand name is a means of individualization of a legal
entity, which it uses for civilian purposes, carrying out commercial
activities. According to the authoritative opinion of A. Sergeev, "company name can be used in a variety of
publications, advertising, ads, annotations" [2], to complete the list: in
publications on market analysis, different ratings, summaries of judicial
practice, etc.
So, the
reason for the dispute before the Court for intellectual property rights,
served as a "fact of placing the article on the website, which said about
the occurred event (about the loss of the cargo of the respondent company)"
[5]. As pointed out by the complainant, the article contains insulting phrases
about its employees, as well as the illegal use of its trademark and company
name. Court did not support the claimant's position and noted the following:
"In the present case, the expression used in the article are negative.
However, they are value judgments. And opinion of the author these phrases are
the category of subjective nature and is inextricably linked to the individual.
Therefore, the requirement to confirm the veracity of such information
unrealizable. The message is about the actions of employees in this situation
is not anticipated by the business reputation of the plaintiff. In addition,
within the meaning of the Civil Code norms is not recognized using the trademark
mention of the word, although registered as a brand, but is used in the
articles or in the descriptive information purposes" [5].
According to the author, should abandon the current
system at the moment of occurrence of such rights and to introduce a
registration system for effective management of a commercial organization, and
proper legal protection of the right to a company name. This is because it is
necessary to establish a clear procedure when the right to the trade name. Such
a procedure would preclude the emergence of a similar or identical trade names
that would avoid subsequent disputes between legal entities, and would make it
possible to carry out the state control over the use of intellectual property
under consideration. In our opinion, the registration system should be based on
the fact that the emergence of the right to a company name should not be made
directly dependent on the fact of his registration. This procedure does not
have the value of a title. However, for legal entities will remove the problem
of proving that they are the first users of these intellectual property rights,
and therefore their legitimate owners. In other words, in this sphere should
operate a presumption that the person in whose name first registered specific original
brand name, is the rightful holder. Since trade names register shall be open to
the public, all other commercial organizations shall be considered as knowing
that a specific business name already has its owner.
References:
1. Shreter V. Sovetskoe khozyaystvennoe pravo.
M.-L.: 1928. s.196.
2. Sergeev A.P. Pravo na firmennoe naimenovanie i tovarnyi znak. – Spbyu: Izdatel'stvo S.-Peterburgskogo gosudarstvennogo universiteta. 1995. S. 15-16.
3. Spravka o nekotorykh voprosakh, voznikayushchikh pri primenenii polozheniy paragrafa 1 glavy 76 Grazhdanskogo
kodeksa Rossiyskoy Federatsii Sudom po intellektual'nym pravam kak sudom kassatsionnoy instantsii Postanovlenie prezidiuma Suda po intellektual'nym pravam ot 4 sentyabrya 2015 goda № SP-23/25 URL:
http://ipcmagazine.ru/news/3542-news2372 (data obrashcheniya
(05.11.2016).
4. Postanovlenie Suda po intellektual'nym pravam ot 20 noyabrya 2015 g. №
S01-946/2015 po delu N A53-1118/2015. URL:
http://ipcmagazine.ru/news/3224-news2085 (data obrashcheniya
(05.11.2016).
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S01-377/2016 po delu N A40-128923/2015. URL:
http://ipcmagazine.ru/news/3552-news2072 (data obrashcheniya
(05.11.2016).
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voprosakh, voznikshikh v svyazi s vvedeniem v deystvie chasti chetvertoy Grazhdanskogo kodeksa Rossiyskoy Federatsii» // Rossiyskaya gazeta 22.04.2009. №
70.
7. Postanovlenie Suda po intellektual'nym pravam ot 28 iyulya 2016 g. №
S01-590/2016 po delu № A07-9621/2015.
URL:http://ipcmagazine.ru/news/3590-news2410 (data obrashcheniya
(05.11.2016).
8. Medvedev D.A. Pravo na firmu
v usloviyakh rynochnoy ekonomiki // Osushchestvlenie i zashchita imushchestvennykh prav grazhdan i organizatsiy v usloviyakh formirovaniya sotsialisticheskogo pravovogo gosudarstva.
Ufa: 1991. S.70-71.
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