CIVIL LIABILITY FOR MISUSE OF A TRADEMARK ON THE INTERNET

Abstract

The article considers the problematic issues of civil liability for misuse of a trademark on the Internet, namely: insufficient legal regulation of civil relations in the field of trademark use on the Internet; lack of a clear mechanism for establishing the owner of a website on which a trademark is illegally used; lack of a clear mechanism for determining the amount of non-pecuniary damage caused by the improper use of a trademark on the infringer’s website; lack of a clear mechanism for determining the amount of damages and lost profits for improper use of the trademark on the infringer’s website. It is proposed to solve these problems by making changes and additions to current legislation and the adoption of new regulations, as well as by creating a Unified State Register of website owners, following the example of the WHOIS database. Variants of illegal use of the trademark in the technical part of the website, namely in the meta tags keywords, title, description, are considered. In addition, special attention is paid to the analysis of the provisions of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other, which revealed two approaches to calculating the amount of damage determining the amount of damages caused by a civil offense. Also, the analysis of the norms of the Civil Code of Ukraine, the Law of Ukraine “On protection of rights to marks for goods and services”, the Law of Ukraine “On protection of personal data”, which regulate this industry. Also, doctrinal researches of scientists concerning compensation of moral damage and losses, ways of illegal use of a trademark on the Internet are considered. Thus, within the framework of consideration of the specifics of moral damage, the subjective side is analyzed, namely the guilt of the offender. Problematic issues are considered, namely the violation of the violator’s illegal behavior and cases of creating a website on request.