FEATURES OF LEGAL PROTECTION OF TRADEMARKS IN THE TERRITORY OF SWITZERLAND IN THE CONTEXT OF THE CITIZEN'S RIGHT TO A NAME

In article the legislation and judicial practice of Switzerland concerning use of a name of the citizen as a part of a trademark is investigated. Questions of legal protection of trademarks with use of a name of the citizen in case of identity or similarity to extent of mixture between trademarks, between a trademark and the unregistered designation are analyzed. The name of the citizen, except the main function on identification of the person, can be used in commercial activity, in particular, as a trademark or a trade name. It can lead to the conflicts with the owners of identical names acting in economic circulation. Besides, legal protection of the trademark including a name of the citizen has dual character when the personal non-property right addressed to resists to property right on a trademark. The problem consists in definition of a scope of the legislation on intellectual property and norms on protection of the right addressed to in relation to area of the conflict of the means of individualization using a name of the citizen. The Swiss judicial practice proceeds from the principle of weighing of interests, considering monopoly of the owner of a trademark on the one hand, and the right for free use of the name by any citizen, including in business activity, on the other hand. The analysis of the Swiss practice will help the Russian law enforcement official to find more weighed approach to questions of use of a name of the citizen as a part of the trademark taking into account distinctive ability of the last.

право на имя, торговая марка, исключительное право, принцип взвешивания интересов, монопольное право, правообладатель, различительная способность