NON-TRADITIONAL TRADEMARKS: ACTUAL PROBLEMS OF LEGAL PROTECTION

The article is devoted to actual problems of legal protection of non-traditional trademarks. On the basis of the analysis of international legal regulation of non-traditional trademarks, the classification of the approaches of foreign countries was made. An overview of the practice of legislative introduction of the legal status of non-traditional trademarks allowed the author to group the countries by virtue of approaches chosen in 3 groups: 1) the possibility of registration is explicitly provided by the law; 2) the possibility of registration is completely excluded; 3) registration is based on the evaluation of a potential trademark for compliance criteria developed within practice (discretionary power of judicial authorities). The author analyzes certain types of non-traditional trademarks (single colors, sound and aromatic marks) and outlines the main criteria for their protection. The main obstacles to the protection of non-traditional trademarks are defined as follows: 1) the necessity of graphic representation; 2) distinctiveness of a mark. Besides this, the article provides a fundamental review of certain court decisions on the subject of assessment of registrability of non-traditional trademarks. As a result, the guidelines of the relevant decisions are presented, which have formed the basis for further law enforcement practice. The author emphasizes the characteristic feature of the distinctiveness for non-traditional trademarks, which is as follows: since, as a rule, they are lack of distinctiveness by nature, this condition is satisfied in the case of acquisition a distinctive character as a result of use made of them (“secondary meaning”). The author makes a conclusion on the necessity of unification of international legislation on legal protection of non-traditional trademarks and further harmonization of national legislation.