The dissertation is one of the first in Ukraine complete a comprehensive study of problems of evidence in trademark rights disputes, which is relevant for the correct definition of the subject and the limits of proving in a separate subcategory of cases, the use of relevant and admissible evidence, the improvement of trademark law and practice of its application in the court. The dissertation reveals peculiarities of cases concerning trademark rights, issues of judicial jurisdiction, proposes the concept and classification of disputes about trademark rights and the reasons for their occurrence. Considerable attention is paid to the peculiarities of the subject of proving in trademark rights cases and the circumstances included in the subject of proving in separate groups of cases. Reviewed in detail the means of proving, necessary evidence in trademark rights cases, recommendations are given for the appointment, conduct and evaluation of the main means of proving - the expertise. The dissertation proposes the definition of the "dispute about the trademark rights" as a legal conflict that arises between the participants in the field of intellectual property, namely, between individuals, business entities and state authorities regarding the acquisition, opposition and using of the trademark, which are considered in court. The peculiarity of disputes over trademark rights is that they arise on the brink of legal relationships between different branches of law - civil, economic, tax, administrative, criminal, etc., and therefore are characterized by their complexity.
It was proposed to determine the place of trademark rights cases as a subcategory of a separate category of intellectual property rights cases, which will be considered in accordance with the rules of economic legal proceedings, regardless of the grounds and subject of the dispute, regardless of the subject structure of the legal relationship and its nature, considering that trademark relations provide for the consideration of circumstances which are caused by economic activity and commercial use of trademarks.
It was suggested that reviews of expertise, provided outside the procedure for reviewing the expertise’s of court experts and expert studies, approved by the Ministry of Justice of Ukraine, should be assessed by the court as inadmissible evidence. The peculiarities of the subject of proving in trademark rights cases are distinguished, due to the fact that the set of circumstances that must be established for the correct resolution of the case and the fulfillment of the tasks of economic justice is determined on the basis of the norms of the extensive system of normative legal acts concerning the legal regulation of trademark rights, taking into account peculiarities of the use of trademark in economic activity, and the fact that the same sign may belong to different objects of intellectual property. The subject of proving in cases of cancellations of the trademark registration and in cases of infringement of trademark rights arising on the basis of identity or similarity of signs shall not include proof of such circumstance as deceivng to the public who produces product or service, as this leads to an unjustified extension of the subject of proving. It was argued about necessity of delimiting the concepts of "deceiving" and "confusion" based on the delimitation of the grounds for refusal to provide legal protection of trademarks in absolute and relative grounds, which entails various grounds for refusal trademark rights, as well as to prevent the expansion of the subject of proving in trademark rights cases. In trademark rights cases, there is a need for research based on the use of specialist knowledge and involvement as one of the means of proving the expertise. The features of trademark expertise are defined, which consists in the fact that trademarks are being researched in a complex of comparison of their characteristics, close connection with the goods and services for which they are registered, and from the position of their perception by the average consumer. The evident identity of signs which used on identical goods or in the provision of identical services may be established by a court, however, the determination of the similarity of signs in such a way that they can be confused is a difficult task and is the subject of expert research. When establishing the similarity of signs by a court, it is necessary to justify this similarity in the decision with the reflection of all factors that can be relevant for establishing such a circumstance.
