INHERITANCE OF INTELLECTUAL PROPERTY RIGHTS TO A TRADEMARK (SERVICE MARK): ISSUES

Abstract

The purpose of the article. Scientists have paid more attention to the issue of inheritance of intellectual property rights to a trademark compared to other objects included in the group of objects of individualization (commercial name and geographical indication), at the same time, there is a need to systematize problematic issues for the purpose of a comprehensive approach to the choice ways of solving them. The methodological basis of the research is general scientific and special methods of cognition. The use of these methods made it possible to describe the problems related to the inheritance of intellectual property rights to a trademark (service mark). Results: the right to a trademark as an object of intellectual property can be subject to inheritance. However, the current legislation of Ukraine does not distinguish the specifics of the inheritance of objects of intellectual property rights, in particular the inheritance of the right to a trademark (service mark), in connection with which, in practice, notaries and courts apply general provisions on inheritance to them, equating them to other objects of inheritance. Discussion: the properties of a trademark as an object of inheritance have significant differences compared to the characteristics of other objects of inheritance, as well as the rights acquired by the testator in relation to other objects of inheritance differ in the possibility of alienation in the order of inheritance of only property rights in relation to such an object. In addition, there are no developments regarding the procedure for regulating the registration of the transfer of rights to a trademark to an heir at a notary, in particular, in terms of the transfer of rights to several heirs, which raises a number of questions, the answers to which are not contained in the law.

The use of means of individualization, which includes a trademark, is important in the implementation of economic activity. In addition to the distinguishing function, the trademark is intended to inform consumers about the quality of goods (services), that is, it plays a guarantee function, as well as an advertising function, since it is intended to advertise goods (services). At the same time, the trademark is an important component of the business reputation of the subject of economic activity, which is associated with consumers and competitors through quick perception through a certain intangible image that is embodied on specific material media.

It is obvious that a trademark can be an interesting heritage object. However, the current legislation does not distinguish the specifics of the inheritance of objects of intellectual property rights, in particular the inheritance of the right to a trademark, in connection with which in practice notaries and courts apply general provisions on inheritance to them, equating them to other objects of inheritance. At the same time, the properties of a trademark as an object of inheritance have significant differences compared to the characteristics of other objects of inheritance, as well as the rights acquired by the testator in relation to other objects of inheritance differ in the possibility of alienation in the order of inheritance of only property rights in relation to such an object. In addition, there are no developments regarding the procedure for regulating the registration of the transfer of rights to a trademark to an heir at a notary, in particular, in the part of the transfer of rights to several heirs, which raises a number of questions, the answers to which are not contained in the law.