DETERMINATION OF NON-TRADITIONAL TRADEMARKS: UKRAINIAN LEGISLATION AND INTERNATIONAL EXPERIENCE

Abstract

The article is dedicated to non-traditional trademarks. The author justifies the urgency of non-traditional trademarks research in Ukrainian law and international practice. The author analyses trademarks as source that identifiers by distinguishing the goods and services of one person or company from those of another. Traditionally, trademarks have consisted of a word, a logo or a combination of both. The mark may consist of word or words that are invented or that do not describe the goods or services that are the subject of the trademark application. A mark may also include letters, numerals or combinations of both. A logo may be an abstract design, a stylization or a simple reproduction of everyday objects or images. Over time, other elements besides words, logos and graphic designs have come to serve as identifiers of the source of goods or services, thus serving the function of marks. These are called nontraditional marks. The level of protection such marks receive varies among jurisdictions; what is considered a protectable «nontraditional mark» in one jurisdiction may not be granted any protection in another. Thus, the author analyses international practice in countries where registration of non-traditional trademarks is the most numerous. Non-traditional marks, as well as traditional marks, must be registered in order to receive protection according to most World legislations. Non-traditional marks were rare, due either to the impossibility of applying for such a mark or the risk of being denied in registration due to the need to prove acquired distinctiveness. Many jurisdictions provide some form of protection to nontraditional marks. Most commonly protected are product designs, packaging and product configuration, which are collectively referred to as trade dress. By contrast, the registrability of color, sound, scent, taste and touch is not uniformly recognized around the world. The main types of nontraditional trademarks are: color or combination of colors, motion, shape, sound, scent, taste and touch. The largest number of non-traditional trademarks are registered in the European Union, USA, Australia and Japan. The author analyses Ukrainian legislation concerning non-traditional trademarks. As in many countries, Ukrainian legislation does not exclude the possibility of registration of non-traditional marks. The Ukrainian legislation provides the possibility of registering different types and combinations of designations in addition to word, graphic and three-dimensional marks and another types of marks.