The dissertation is devoted to the study of legal protection of exclusive rights to trademarks as an element of the content of intellectual property legal relations in accordance with the legislation of Ukraine and the provisions of the main international regulations in this area. The object of research is the social relations regarding the emergence, exercise and protection of exclusive rights to trademarks regulated by the civil law of Ukraine.
The author carried out a comprehensive theoretical analysis of issues related to the protection, exercise and defense of trademarks rights to as an element of the content of intellectual property relations. The author also considered the international legal aspect of protection and defense of trademark rights. The work deals with the problem issues of theoretical definition and composition of the violation of trademark rights as the basis for the emergence of a protective legal relationship of intellectual property, the issues of theoretical definition of "protectability of a trademark" and the main positive conditions and characteristics that define the trademark protectability.
The author also considers the terminological inconsistencies concerning trademarks that exist in domestic law, the functions and varieties of trademarks as objects of intellectual property legal relations. Also, the author examines the problem issues of trademark exclusive rights as an element of regulatory and protective legal relationship both under the legislation of Ukraine and under international legal acts of the universal level, in particular, the issues of use and disposal of trademark, restrictions on exclusive trademark rights, as well as forms and methods of exclusive rights protection, liability for violation of exclusive rights to a trademark, etc.
The author carried out a comparative legal analysis of the norms of the current legislation of Ukraine and the provisions of the main international legal acts in the field of the protection of trademarks rights, which Ukraine is a party to, as well as formulated theoretical and practical proposals for the further development of the legislation of Ukraine in the field of protection of exclusive rights to trademarks.
Investigating the problematic issues of violation of the exclusive right to a trademark as the basis for the emergence of a protective legal relationship of intellectual property, the author determines that the legal basis for the emergence of a protective legal relationship of intellectual property, within which the protection of infringed rights and secured interests of the rightholder takes place, is a violation of the exclusive right to a trademark. In addition, the composition of the above-mentioned violation - the illegal use of a protected another person’s trademark - includes only one necessary element (wrongfulness of the act), with which the law links the application to the offender of the legal sanctions provided by the law. However, the presence of other elements of the violation is necessary only for the application of certain civil remedies, in particular, in case of compensation for the rightholder’s damages incurred due to the unlawful use of his trademark.
On the basis of an analysis of the conditions for the provision of legal protection, contained in national legislation and in international regulations, the author gives his own definition of the "protectability" of a trademark concept. Thus, in the author's opinion, the "protectability" of a trademark should be understood as the ability of a specific conditional designation to obtain the status of a protected intellectual property rights’ object as a trademark on the basis of a certain legally established registration procedure or as a result of the actual commercial use of such designation and the acquisition of sufficient level of fame (if provided by the legislation of a particular state), which is determined by observance of the conditions (requirements, criteria, etc.) established in the relevant legal acts.
The work investigates the legal criteria for establishing "homogeneity" of marked goods and services, and also defines this concept: "As homogeneous goods or services are recognized the goods and/or services of the same kind and type which, if marked by identical or similar trademarks, can bring the consumers to the impression that such goods and/or services belong to one rightholder". Accordingly, the author concludes that in order to create a uniform law enforcement practice, in particular, when conducting an examination of applications in the process of trademarks registration, it is necessary to enshrine the legal definition of the concept of "homogeneity" of goods and services in the legislation of Ukraine.
