DISTINGUISHING LEGAL CATEGORIES “COMPENSATION”, “DAMAGES”, “POTENTIAL PECUNIARY LOSSES” IN DISPUTES CONCERNING THE PROTECTION OF EXCLUSIVE RIGHTS TO A TRADEMARK

The institute of compensation for infringement of the exclusive right to a trademark, representing an independent form of civil liability, was introduced into Russian legislation on intellectual property to facilitate the recovery of damages for infringement, as well as due to the particular nature of intellectual property objects, which makes it difficult to determine the amount of damages and the causal relationship of their occurrence. The author posits that Russian civil legislation does not contain a legal definition of «compensation», leading to the inability to determine its purpose (restitution, penalty or prevention), the lack of uniform judicial practice, as well as numerous scientific discussions. The author’s definition of the term for the purpose of distinguishing such legal institutions as “compensation”, “damages” and “ potential pecuniary losses” in disputes over the protection of the exclusive right to a trademark is presented. Based on a range of opinions of civil law scholars and analysis of the practice of higher courts, the essence and problems of identifying various types of property civil liability for infringement of the exclusive right to a trademark are examined. Since compensation is an alternative sanction to damages, the author suggests eliminating the need for the rights holder to prove the occurrence of any pecuniary losses (including potential ones) to substantiate the amount of compensation in case of infringement, due to the impossibility of their precise calculation, as well as the impracticality of performing this action when it is possible to calculate compensation in the amount of twice the value of counterfeit goods.

intellectual property, exclusive right, trademark, property liability, compensation, damages, potential pecuniary losses, legal institute, counterfeit, burden of proof

Prokhorov V. A. Distinguishing legal categories “compensation”, “damages”, “potential pecuniary losses” in disputes concerning the protection of exclusive rights to a trademark. Biznes. Obrazovanie. Pravo = Business. Education. Law. 2024;2(67):253—257. DOI: 10.25683/VOLBI.2024.67.999.