A legal regime of trademark property rights that have arisen during marriage of the owner

Abstract

The article highlights problematic issues in the field of intellectual property, in particular, it raises the question of recognition of trademark property rights as joint property of spouses. It analyzes aspects that should be taken into account when deciding upon separation of ownership interest between spouses, where one of the spouses is an individual person – entrepreneur (FOP). We have defined the ways of improving legislative acts regarding settlement of the trademark property rights separation, having analyzed current legislation, decisions of courts of different levels, and the subject scientific literature.
It was established that legal regulations that cover the legal regime of rights to the above-mentioned object of intellectual property were imperfect, thus causing significant difficulties for business. At the same time, the Civil Code of Ukraine is quite clear in its regulations related to the legal regime of proprietary rights and joint ownership. However, when the rights to objects of intellectual property, including the trademark property rights, are concerned, national legislation does not provide unambiguous rules for acquisition and implementation of joint rights, including in situations when several persons claim their rights for the same trademark property. The above-mentioned is relevant primarily for the trademark property rights registered by married individual entrepreneurs. We have studied the issue of extending the provisions of the Civil Code of Ukraine on the joint proprietary rights and separation of property between spouses to relations that covered trademark property rights, since the intellectual property rights do not belong to proprietary rights, but constitute a separate type of so-called «exclusive rights». We established that the Family Code of Ukraine lacked any provisions regarding the legal regime of property rights to objects of intellectual property acquired within marriage.
On the basis of the studied materials, we developed the foundations of a clear and well-grounded approach to the improvement of current legislation in terms of legal certainty of ownership of trademark property rights acquired within marriage and further allocation of such rights.
As a result of the study, we proposed to amend the Family Code of Ukraine with a provision which would determine that a spouse not specified in a certificate of trademark registration, should be entitled to a part of income received by another spouse from using trademark property rights and a part of the right value upon transfer of the trademark right, as well as to amend the wording of Article 190 of the Civil Code of Ukraine in order to eliminate contradictions that may arise while solving the issue of separating intellectual property rights by excluding an indication that ownership interest is recognized as proprietary rights.