Osoblyvosti zakhystu prav na lohotyp yak promyslovyi zrazok: ukrainskyi ta zarubizhnyi vymiry

Abstract

The article examines general legal approaches to the protection of rights to logos as industrial designs in the legislation of Ukraine and the EU member states and identifies the specifics of the application of individual protection methods in the specified legal systems on the example of modern judicial practice (case law). The author establishes the research on the normatively and factually conditioned attribution of the logo to objects that can receive registration as industrial designs with the provision of appropriate legal protection. Based on the analysis of the legal positions of the Supreme Court, it is argued that the protection of rights to a logo as an industrial design is based on the principle of actual similarity to any graphic image that is used for commercial purposes to identify another product or manufacturer (including those used as a trademark), and not based on a casuistic approach with the extension of legal protection and jurisdictional protection only to other industrial designs. It is summarized that among the methods of protecting the rights to logos as industrial designs, normative fixation at the level of the legislation of Ukraine and EU member states, as well as the most widespread in judicial practice, were the termination of the violation of the rights of the owner of the certificate and compensation for the damages, along with the possible recourse to customs control means, restoration of violated rights, etc. At the same time, in contrast to the Law of Ukraine «On Protection of Rights to Industrial Designs», the corresponding foreign laws establish general approaches to calculating the amount and components of compensation that the owner of the rights to an industrial design, including the logo protected as such, can claim. The specified provisions include the consideration by the court of the negative economic consequences of the violation, including the lost profit, damages suffered by the injured party; moral damage caused to the owner of the rights to the industrial design; profits received by the infringer, including the calculation of savings in intellectual, material and advertising investments, that he has withdrawn from the illegal use of the industrial design.