In the course of carrying out its business activities, the company may face unfair actions of a competitor. One of the common methods of unfair competition is the illegal use by a competitor of a designation that is identical or confusingly similar to the trademark of another business entity. In Belarus, the prohibition on committing such actions is established in the civil and antimonopoly legislation.
The Civil Code of the Republic of Belarus (hereinafter - the Civil Code) stipulates that all actions that can in any way cause confusion in relation to legal entities, individual entrepreneurs, goods, works, services or business activities of competitors should be recognized as unfair competition (Article 1029 of the Civil Code ).
This provision is disclosed in more detail in the Law of the Republic of Belarus dated 12.12.2013 "On Counteracting Monopolistic Activities and Development of Competition" (hereinafter referred to as the Law).
Thus, Article 28 of the Law states that unfair competition related to:
- the acquisition and use of the exclusive right to the means of individualization of participants in civil circulation, goods;
- the commission by an economic entity of actions for the sale, exchange or other introduction into civil circulation of goods, if at the same time there was an illegal use of the intellectual property object.
Article 29 of the Law is devoted to the prohibition of creating confusion with the activities of another economic entity or its goods.
According to the provisions of this article, actions related to the illegal use of a designation identical to the trademark of another economic entity or similar to them to the point of confusion are prohibited:
- by placing it on goods, labels, packaging or otherwise using it in accordance with the legislation on trademarks and service marks in relation to goods that are sold or otherwise introduced into civil circulation on the territory of Belarus; as well as
- by using it in the global computer network Internet, including placement in a domain name.
A similar rule is contained in paragraph 3 of Article 3 of the Law of the Republic of Belarus dated 05.02.1993 "On Trademarks and Service Marks" (hereinafter - the Law on Trademarks), according to which the use of a trademark or a designation similar to it is recognized as a violation of the exclusive right to a trademark to the point of confusion, without the permission of the owner of the trademark, expressed in the commission of actions provided for in paragraph 1 of Article 20 of the Law on Trademarks in relation to homogeneous goods, as well as heterogeneous goods marked with a trademark recognized as well-known in the Republic of Belarus.
As actions of a competitor that violate the right to a trademark, which are listed in Article 20 of the Law on Trademarks, the illegal use of a trademark on goods and related documentation, in the performance of work and in the provision of services, in advertising, printed publications, on signs, is recognized, when demonstrating exhibits at exhibitions and fairs and on the global computer network Internet.
The following penalties may be applied to violators of the exclusive right to a trademark on the basis of Article 29 of the Trademark Law:
- removal at the expense of the offender from counterfeit goods, labels, packaging of an illegally used trademark or designation similar to it to the point of confusion, and if it is impossible to remove them, their removal from civil circulation and destruction;
- removal, at the expense of the infringer, of a trademark or designation similar to it to the point of confusion from materials that accompany the introduction of this product into civil circulation, the performance of such work and / or the provision of such services, including from documentation, advertising, printed publications , signboards, as well as from the global computer network Internet;
- compensation for losses or payment of compensation in the amount of up to fifty thousand base units (approximately more than 570,000 US dollars), determined by the court taking into account the nature of the violation, at the choice of the person whose right has been violated.
The suppression of actions that violate the exclusive right to a trademark and constitute unfair competition can be carried out in two ways:
- administratively: by filing with the Ministry of Antimonopoly Regulation and Trade of the Republic of Belarus (hereinafter - MART) an application for violation of antimonopoly legislation in terms of unfair competition;
- in a judicial proceeding: by filing a claim to the judicial collegium for intellectual property of the Supreme Court of the Republic of Belarus (hereinafter - the judicial collegium of the Supreme Court) for the suppression of actions that violate the exclusive right to a trademark.
When considering claims for the suppression of these illegal actions, the judicial board of the Supreme Court evaluates the totality of the following facts:
- homogeneity of goods / services of subjects;
- identity of designations or their similarity to the point of confusion.
When establishing homogeneity, the attribution of goods / services to a certain class of the international classification of goods and services (ICGS) is taken into account.
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