B trademarks are often used unprotected elements, which, according to Article 1483, paragraph 1 of the Civil Code of the Russian Federation do not have discriminative ability. One of them includes elements with such properties as “that have come into general use to designate goods of a certain type". These elements, as a rule, were used for a long time for the same product by different manufacturers, and therefore the consumer began to associate it not with the manufacturer, but with a certain type of product. For this reason, such marks can no longer be used as a means of individualizing a product or its manufacturer. They become a specific concept of goods, among which we can distinguish material (clothing, construction goods, etc.) and intangible goods that do not have a material form and relate to services (for example, legal services, medical care, etc.). As an example, we can cite trademark No. 405828, the verbal element of which “YELLOW PAGES” in relation to goods of class 16 of the ICGS (printed products, reference books) is not protectable, since such a phrase refers to designations that have come into general use to designate printed products.
Generally accepted symbols in the form of graphic images characterizing a particular field of activity or a certain industry do not have distinctiveness, and therefore cannot be protected. (for example, medical equipment marked with trademarks with the unprotected elements of a “snake” or “cross”). Or terms used in specific areas of science and technology (for example, the element "modem" in relation to goods related to communication devices, etc.). This category also includes such unprotected elements in trademarks used, for example, in the chemical or other industries: Mg+, K+, etc., currency symbols (€, $), etc.
It must be remembered that elements indicating the type and property of the product do not have distinctiveness (for example, trademark No. 724029, in which the words “NATURAL COSMETICS” are unprotected because they indicate the type and property of the product), as well as the quality, quantity, purpose and value of the goods. Unprotected elements also include elements indicating the time, place and method of production or marketing of a product.
If elements in trademarks represent a form of goods that is determined primarily by its property or purpose, then such elements are also unprotectable. For example, trademark No. 735887 for class 33 (wine), in which the shape of the bottle is indicated as an unprotected element or image of a natural product (vegetables, fruits, plants, etc.).
In conclusion, I would like to add that all of the above elements can be included in a trademark as unprotected elements if they do not occupy a dominant position in it, and the trademark itself can be successfully registered with Rospatent. But when developing it, it is important to know which elements do not have independent legal protection and what place they should occupy in the designation. Therefore, to successfully register trademarks with elements that do not have distinctiveness, it is important to involve specialized specialists.
