We often encounter a situation where a competitor uses the designation of its owner, who did not register it on time. What needs and can be done to protect a business in this case? And is it possible to do without registering a trademark?
To individualize legal entities and entrepreneurs (along with the company name), a commercial designation is used. However, if a company name is mandatory for legal entities that have the exclusive right to use it by virtue of the registration of an organization, and is used for commercial organizations, then the commercial designation is primarily intended for consumers and can be used for commercial and non-profit organizations.
A brand name is distinguished by the fact that it is always verbal, does not reflect the visual properties of the brand, and can only be in a single copy. In addition, the right to a company name cannot be alienated and the right to use it cannot be granted to another person.
In cases where there is no registered trademark, the benefits of a commercial designation can be taken advantage of.
The peculiarities of a commercial designation include the fact that it individualizes an enterprise, not a product, and also cannot fully replace a trademark. But, nevertheless, a commercial designation and a trademark are interrelated, since the company providing services or the manufacturer of the product in this case is the source of the product or services necessary for the consumer.
For this reason, it is important to avoid confusion with respect to similar goods or services between trademarks that may be identical or confusingly similar to trade marks.
In order for a commercial designation to be protected, it must have the status of an object of exclusive right, for which it is important to have sufficient distinctive features and not be confusingly similar to someone else’s trademark or commercial designation, the right to which arose earlier. For this purpose, it is important to conduct a search in advance in order to exclude such a situation.
By sufficiently distinctive features in relation to a commercial designation we mean “distinctiveness” in relation to trademarks. It is important to remember that generally accepted symbols, terms, names and abbreviations of organizations, their products, as well as images of goods, their characteristics, etc., do not have distinctiveness, which can apply equally to any market participant and do not single out a specific manufacturer or seller, but, on the contrary, confuse it with other market participants.
The fame and distinctiveness of a commercial designation are its most controversial features and are not indicated in the fourth part of the Civil Code of the Russian Federation. And, despite the fact that in practice we encounter services for entering commercial designations into the Register of Commercial Designations, the received certificates of entry cannot be absolute proof of exclusive right, unlike the Certificate of Registration for a trademark.
It should be noted that a unified state register of commercial designations is not provided for by law, they do not exist, therefore, to protect business, it is important to register a trademark.
The right to a commercial designation can be alienated, but only as part of an enterprise for the individualization of which such a designation is used or its copyright holder can grant the right to use it to another person.
