Use of state symbols in trademarks: problem issues

Abstract

The article examines the international and national legal framework for the protectionof state symbols, in particular as part of a trademark. The facts of illegal use of state symbolsin everyday life and for commercial purposes have become more frequent. However, inUkraine, the issue of approval of state symbols by one legislative act or separate laws ofUkraine has not been resolved. International law established protective norms that providefor the procedure for the use and responsibility for the improper use of state symbols.Article 6ter of the Paris Convention is the most important norm that supports the dignityand integrity of coats of arms, flags and national emblems. This prevents their unauthorizedcommercial use and exploitation, while promoting international cooperation and respectbetween countries and international organizations. It applies to all states that areparties to the Paris Convention, as well as to WTO members, regardless of whether theyare parties to the Paris Convention or not, in accordance with Article 2.1 of the TRIPSAgreement. Therefore, the approach of the Intellectual Property Office regarding the inclusionin the trademark of an image imitating the small State Coat of Arms of Ukrainecontradicts Art. 6ter and also Art. 65 of the Constitution, which establishes that honouringstate symbols is the duty of a citizen of Ukraine. This prevents their unauthorizedcommercial use and exploitation, while promoting international cooperation and respectbetween countries and international organizations. The foreign practice of legislative regulationof stopping the unauthorized use or abuse of state emblems deserves attention.Thus, Sec. 97 of Ireland's Trade Marks Act empowers the Minister to take action in theevent of unauthorized use by any person in the course of a commercial activity of the StateCoat of Arms or similar images. A fine is imposed on the violator. Sec. 98 gives the Ministerextraterritorial powers to take relevant actions outside the state. This provision is intendedto prevent, limit, or provide penalties for the registration, use, or application togoods not manufactured in the State of any trademark or other mark or description, orfalsely indicating the same. It is concluded that such norms should be provided for in thenational legislation.