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4.1. The Procedure for registration in the USA as the trade mark (trade mark) of the name of creative work or the character

The avtorsko-right protection in the USA has essential differences in comparison with protection on norms of the Russian author's legislation. They are connected by that the optimum mode of such protection assuming granting of the maximum protection frames of copyrights, is provided in relation to the objects preliminary registered by means of deposition in Library of the Congress of the USA.

Similarity of avtorsko-legal regimes of protection of the USA and Russia, undoubtedly, also is present: in both countries copyright occurrence is connected with the moment of creation of product. Nevertheless, registration acts as rather important condition of realisation of protection of the copyright to product in case of infringement of the granted right as thereby for owners of the rights to the registered products a number of advantages is created. Further, with a view of carrying out of rather-legal analysis, we will address to consideration of some of them.

Registration puts the owner of copyrights to product in much more favourable position under the relation to all other persons, creating thereby a presumption pravoobladanija and warning contest possibility the potential respondent (infringer) in court existence of copyrights of the claimant. [96] third parties are warned that work is protected by the copyright and about possible approach of responsibility in case of illegal, not authorised

The legal owner of use of product.

Deposition gives advantages in sphere of compensation of the harm caused to the legal owner: it does possible collecting of the penalties provided by the legislation, which size, unlike the size of the caused losses, does not demand proving. Besides the size of indemnification, statutory and awarded for infringements of the rights to the registered products, several times above (sometimes more than in 10 times), than the penalty awarded for use of not registered products. Besides it, there is possible a presentation to the respondent of the requirement about the reimbursement, the legal services connected with rendering which payment usually constitutes a considerable part from losses and the expenses which are taking place in connection with infringement.

Deposition of a copy of product does

Possible "fixing" of object of the copyright, relieving

The legal owner from necessity of preliminary registration

Copies of products in court before giving of the default claim of copyrights (under the legislation of some states). And, at last, the reference to the court before proceeding with the request is possible to take out the preliminary decision about an interdiction not authorised

Uses - so-called «a judicial interdiction» (Injunction) which somewhat is the American analogue of the Russian measures under the security for cost.

Means for an individualization of the goods made by any person, being in the Russian Federation a trade mark, in the USA has received the trade mark name. According to the destination the trade mark and the trade mark are similar and necessary for the manufacturer of the goods for goods identification.

Unlike the majority of the countries in the USA the trade mark is created by the market, that is trade mark rights of use arise at its use in trade, however trade mark registration is possible and without preliminary commercial use if the person, intending to register the trade mark, will express diligent intention to use the trade mark in trading activity and within 6 months after trade mark registration will present proofs of commercial use.

Thus the USA is the country in which the norm about protection of the rights of the authors operates, limiting registration as trade marks of creative products or their parts.

In the USA a procedure for registration of trade marks and the marks of service representing a name of the author of a literary work or an original work of art; a name of the actor executing pieces of music, and also the original name of creative work or the name/name of the character of such work, it is established by the Management on examination of possibility of registration of the marks based on creative works, published on November, 14th, 2006 (Examination Guide 04-06 Registrability of Marks Used on Creative Works Issued November 14, 2006, further - the Management).

The original name is understood as the name of unique creative work. So, for example, the book name identifies certain literary work, and the consumer does not connect it with the name of publishing house, printing house or the seller of book production. Unique creative work work admits,

Expressed in any material form without change of its maintenance. For the book it can be the manuscript form, the printing or machine-readable (electronic) form.

Such materials as books, the soundtracks, the downloaded songs downloaded ringtony, videorecordings, DVD-records, sound records on kompakt disks and films are usually unique creative works.

The creative works which have been let out in series or heads, but having consolidating name, also are considered as unique creative works.

Theatrical performance, it agree to the given Management, too is unique creative work as the maintenance of the play, a musical, an opera or other similar statements does not undergo considerable changes from one statement to another and has, in general, identical character.

Periodic publications do not concern unique creative works, such as magazines, fair brochures, booklets (brochures), books of comics or teaching materials as the maintenance of these materials changes with each release. In the Management it is noticed, that such designations in creative work as "section 1" or «a part 1» assume periodicity of creative work and exclude possibility of a recognition of such work as unique creative work. Also the software for the COMPUTER and computer games are not considered as unique creative work.

Live concerts of musical groups, a tele-and radio serials, and also educational seminars are not unique creative works as their maintenance can vary with each subsequent demonstration.

Unique creative work cannot be registered as the trade mark as it does not carry out the basic function of the trade mark, does not individualise any goods extending in the market, and represents the name of concrete creative work.

In a case if the department registering the trade mark, refuses to the applicant, being based on the stated position about unique creative work, the applicant can present that proof, that the name is used, at least, for two various creative works. And change of a format of work does not attract change of its character, therefore as the similar proof cannot serve printing and electronic versions of the same literary work. Name use on the full and reduced version of the same work or on the accompanying goods, such as posters, mugs is similar, bags or T-shorts, too cannot be resulted as the proof of that product is not unique.

For example, if in registration of the trade mark "Spectrum" refuse because this name of unique creative work of S.Lukjanenko, the applicant can present copies of other book covers with the similar name, however other maintenance, for that proving, that the given product is not unique.

Concerning a part of the name of unique creative work the Management specifies, that it can be registered only in the event that answers following criteria:

1. Makes commercial impression independently, separately from the full name.

At registration of a part of the name the designation should be considered as the separate element which is put down on a product.

The person who is carrying out examination, should take into consideration the size, a font kind, colour and any distinction between a designation and other part of the name in the course of the analysis. If the part of the name planned to registration as a trade mark, cannot be visually separated from the full name the person who is carrying out examination, should make the decision on refusal in registration of such designation. It is caused by that in this case the designation which is put down on a product, is not exact reflexion of a being of a phrase which is used regarding the name.

For example, we will consider possibility of registration of a part of product «Gloomy morning» (from A.Tolstoy's trilogy "Purgatory"). In this case the word "morning" is absolutely quiet can is separated and, accordingly, can be registered as a trade mark. And on the contrary, the part of the name of product of R.Kiplinga "Riki-tics-tavi" does not create separate commercial impression, therefore in registration of such part will be given up.

2. It is used in a number of creative works.

The applicant should present the information that the part of the name of creative work was used by the author (authors) not once, and is presented more than on one book to a cover or compact disk packing. For example, if the registered trade mark is called «Small parovozik», and the book which part of the name it is, «Small parovozik which has gone on fair» in registration should be given up therefore as the given trade mark will be a part of the name of unique creative work. But, if the applicant presents covers of other books, such as, for example, «Small parovozik goes to school» and «Small parovozik and the big green locomotive», having proved to that neoriginalnost the given name, such trade mark will be registered.

3. Carries out trade mark functions.

In case of use of a part of creative work as the trade mark it is necessary for applicant to prove, that the name planned to registration, really serves as the trade mark for the goods. Simple use of the same words meeting more than in one name of a literary work, is not enough successfully to register these words as the trade mark. To the person who is making an application on registration, it is necessary to present that proof, that the given part of the name associates at the consumer with the trade mark of production or services of the applicant.

Concerning registration of characters as trade marks the Management specifies, that trade marks which represent the character of creative work irrespective of, it takes place in one creative work or in several, cannot be registered under any conditions. For example, the character «Small parovozik» and its image (illustration) cannot be registered as the trade mark even if the name and the image of the character will be present on a cover and on each page of product.

Moreover, according to the Management, in trade mark registration can be given up irrespective of, whether the demand for trade mark registration only the name of creative work, its part or the character contains, or besides it contains any other words. If in the statement on registration the information contains, that the trade mark represents the character of creative work or the name of unique creative work, in this case the expert should make the decision on partial refusal in registration. Besides, the expert should enquire acknowledgement of that the trade mark is used for identification of the certain goods or services.

Thus, the Management provides the majority of chances when as the trade mark the applicant tries to register the name of creative product, its part

Or the character, also cases for refusal in such registration and procedure of carrying out of examination of the trade mark are in detail regulated for the expert of registering body. In Russia now, unfortunately, the similar management (instruction) is absent, that creates problems for authors of the products which rights appear not protected from such unfair registration. Absence of institute of similar examination in registering body is fraught with that it is obliged to accept and register any trade mark if, of course, it does not duplicate already existing irrespective of, it contains the name/part of the name of a literary work and art, and also the name (name) of the character of such products or not.

Summing up, we will notice, that carrying out of the comparative analysis of the author's legislation and the legislation on trade marks of Russia and the USA is represented rather valuable both from the point of view of science development, and for perfection pravoprimenitelnoj experts. Such analysis not only allows to study legal regulation in the USA in the specified sphere, results of the carried out research are of interest in the light of a regulation in the Russian Federation of relations with a foreign element (regarding application of norms of the legislation of the USA about the copyright), and also protection in the United States of America of interests of the Russian legal owners.

4.2.

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A source: Denotkina Anna Viktorovna. the RIGHT PROTECTION of TRADE MARKS And OBJECTS of the COPYRIGHT: rather-LEGAL ANALYSIS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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