Iolkin Y. The Rights to a Trade Mark in Ukraine

The Thesis is dedicated to complex analyses of the aspects of legal regulation of trade marks from the point of adaptation of Ukrainian national legislation to the legislation of European Union. The Thesis is the first complex scientific research of the legal aspects of the protection of trademarks which was focused for the necessity of implementation of TRIPS norms to the national legislation in Ukraine. In the Thesis the author analyses the differences of the understanding of the legal nature of the trade mark in accordance with Ukrainian and European Union legislation. The Thesis consists of four chapters: "Trade Marks as the Object of Intellectual Property", "The Participants of the Legal Relationship on Trade Marks", "The Essence of the Owner's Rights on Trade Marks", "The Protection of the Rights on Trade Marks". Chapter 1"Trade Marks as the Object of Intellectual Property" reflects the intentional nature of trade marks, the types of trade marks (including issues of the registration of unusual elements and types of trade marks using the experience of the national patent offices of European Union countries), the functions of trade marks, the legal imits of free choice of trade marks by the participants of the market of intellectual property. Chapter 2 "The Participants of the Legal Relationship on Trade Marks" concerns the legal aspects of capacity of the participants of the process of trade mark registration. The author classifies the participants into two groups: the participants who are obliged to ensure the fulfilment of international and national legislation in the procedure of trade mark registration and the subjects of the right on trade mark. It is also analysed the issues of the protection of trade marks in the regime of copyright in a case if the author of trade mark has an intention to use the trade mark as the object of copyright. The Chapter reflects the legal aspects of using in the trade marks the surnames, facsimiles or images of historical personalities and public figures. Chapter 3 "The Essence of the Rights on Trade Marks" includes the legal analyses of two doctrines of the establishment of the rights on trade mark: the registration doctrine of establishment of the rights on trade mark and the doctrine of use of trade mark as a moment of establishment of the rights on trade mark. The Chapter 3 reflects also the legal aspects of concluding, fulfilment and violation of contracts in the sphere of transferring of trade mark rights (licence agreements and franchising agreements) in accordance with TRIPS Agreement. Chapter 4 "The Protection of the Rights on Trade Marks" reflects the issues of jurisdiction, which arises as a result of the unclear legal regulation. According to the State Reform of the System of Justice in Ukraine, the capacity of the Commercial Court was cut in the part of the protection of the rights on trade marks. The cases concerning the obtaining of the rights to the trade marks in the Patent Office were transferred to the capacity of the Administrative Court. However, in accordance with the Information Letter of the Higher Commercial court of Ukraine, the claiming of property rights, unfair competition acts and the cases arising from the violation of the contracts are in the jurisdiction of the commercial court.