DESCRIPTIVE USE OF A TRADEMARK AS AN ARGUMENT ABOUT THE ABSENCE OF INFRINGEMENT OF AN EXCLUSIVE RIGHT

Gerashchenko E. V.

based on the analysis of the legislation of the Russian Federation and the law enforcement practice of its arbitration courts, the author of the article highlights the criteria to be taken into account when justifying the descriptive nature of the use of a trade mark. Among others, the following are noted. Firstly, the manner in which the opposed sign is placed, its size and context (e.g. indication of compatibility, purpose of the goods, etc.). Secondly, the use of proprietary marks to identify the goods together with the opposed sign. Thirdly, the methods of labelling adopted for particular types of goods, as well as generally recognised rules and practices in a particular industry. Fourthly, the likely perception of consumers of the opposing sign and the possibility of misleading them as to the defendant's connection with the right holder of the trade mark.

Keywords:descriptive use, limitation of exclusive right, trade mark