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Recognition of Well- Known Trademark in Ukraine

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The recognition of well-known trademarks is governed by Section 25 of Protection of Rights to Product and Service Marks Act of Ukraine. According to the Act, a mark is recognised well-known by court or by the decision of the Appeals Chamber of the State Department of Intellectual Property.
The benefits acquired by a well-known mark include:
1. The status of a well-known mark considerably increases its value as an intangible asset.
2. It should be noted that the legal protection afforded in Ukraine to a well-known mark is very broad.
3. The legal protection of a well-known mark also applies to goods and services non-relative to those for which the mark was recognised well-known in Ukraine. If the use of that mark by any other person in relation to any other goods and services indicates a connection between such person and the owner of a well-known mark, the trademark holder’s interests are likely to be damaged by such use. In other words, in case of a possible violation of a well-known mark holder’s rights the legal protection also applies to non-competing products (non-relative to those for which the mark was recognised well-known). This is impossible is case of ordinary trademarks.
4. A mark is recognised well-known as of a certain date and in respect of its owner.
5. A well-known trademark is better protected both in terms of similarity with other registered trademarks and in respect of similar goods and services for which trademarks are registered or pending. This means that during the examination, all doubts as to the similarity with a well-known mark shall be resolved to provide a greater protection when goods are similar, and where a mark is identical to the well-known mark, the concept of homogeneity is interpreted more broadly.
6. The owner of a well-known mark may demand a prohibition of use of the mark even if only the essential part of such well-known mark was infringed.
7. The mark recognised well known will not get the legal protection from the date of the decision but from the date on which the legal protection was solicited and the evidence provide was deemed to be reasonably sufficient. Therefore, all registrations of similar marks made after that date may be revoked on a review of the relevant objection of the well-known mark owner.
8. A mark can become well-known both due to long and intensive use and due to the nominal use – the manufacturer’s advertising campaign. This is getting more and more relevant with the development of communication systems, satellite television and other mass media. The development of communication helps make a mark well-known quickly outstripping the deliveries of products to and registration of the mark in a country. The mark may be registered for someone else before the owner of a well-known mark presents its products in such country’s market. The pirate uses the mark reputation after having taken over the initiative from the manufacturer. The pirate can start producing low-quality goods undermining the image quality inherent in the well-known mark and misleading consumers. Pirates sometimes obstruct the activities of a foreign company in the domestic market and even offer rightful owners to purchase the mark at a higher price. The owner of the well-known mark incurs huge costs such as loss of profits and loss of goodwill.
9. The status of a well-known trademark means that the market recognises persistent associative relations between a specific sign, manufacture and quality of services (goods).

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