Комерційне найменування: проблеми правового регулювання

The article considers certain problematic aspects of the legal regime of a commercial name under the legislation of Ukraine. It is established that a commercial name is one of the means of individualization, which deserves legal certainty and proper legal regulation. It is proved that the legal regulation of a commercial name is inadequate, since there is no special law on the legal protection of a commercial name, which should be designed to comprehensively regulate the legal regime of a commercial name: the emergence of rights to it, the subject composition, the exercise of rights, the termination of rights, the protection of rights to a commercial name, the features of the transfer of property rights to it. It is proved that individual entrepreneurs have the right to a commercial name, however, the features of its acquisition and content should be determined by law, which currently does not exist. It is substantiated that a commercial name can be used in domain names (both full and abbreviated commercial name), in the content of the site (in different sections), in keywords in information materials on the website, in keywords in the so-called «admin» of the site, in Google advertising, other Internet advertising both in the title or text of the ad, and in keywords in the «admin» of this advertising. It is substantiated that given that the Civil Code of Ukraine does not contain special legislative provisions on the protection of rights to a commercial name in Chapter 43, when protecting rights to a commercial name, the general provisions on the protection of intellectual property rights set out in Articles 431, 432 of the Civil Code of Ukraine shall apply; the general provisions defined in Chapter 3 of Book 1 of the Civil Code of Ukraine shall also apply, in particular, Art. 15 (right to protection), Art. 16 (methods of protection) and others. It is proven that the recovery of compensation instead of compensation for damages for the unlawful use of a commercial name could be an effective mechanism for holding the guilty person to property liability, since recovering damages from an infringer of intellectual property rights is quite problematic, taking into account the complexity of proving the amount of damages. It is substantiated that it is advisable to borrow a legislative approach to specifying the legislative provisions on the possibility of recovering compensation, which has been provided for the protection of rights to other objects of industrial property since 2023. Therefore, it is worth supplementing Chapter 43 of the Civil Code of Ukraine with a norm on the possibility of the subject of the right to a commercial name to demand the termination of the violation and the obligation of the infringer to compensate for the property damage caused by compensating for damages or paying compensation and/or non-pecuniary (moral) damage caused. The need for proper consolidation of the methods of using a commercial name in the digital environment is proven, since the Internet is a common place for using commercial names.