On the correlation of the provisions of the Civil Code of the Russian Federation on the protection of trademark rights with the principle of justice in the context of the transition to postmodernity

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Abstract

The article examines some problems of the implementation of the principle of justice in civil law on the example of the provisions of the Civil Code of the Russian Federation on the recovery of compensation for trademark infringement (punitive damages), taking into account various approaches of civil law doctrine, the legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, areas of law enforcement practice. prevent its destructive impact on the subject of law and preserve the value of law. There are such problems in this area as: the lack of a uniform approach to the essence of punitive damages, entailing ambiguity of law enforcement acts; the imperative definition in the law of the formula for calculating the amount of compensation when claiming twice the value of the right to use a trademark; legislative consolidation of the minimum amount of compensation for its recovery in the amount of 10 thousand to 5 million rubles; the subjective side is not taken into account – there is no possibility in the legislation not to apply punitive damages to the violator if it is proved that the violator did not know about the illegal nature of his actions; there is no differentiation in the amount of compensation depending on whether the offender is a legal entity or an individual entrepreneur and others. It is concluded that there is a significant shift in the balance of interests in Russian civil legislation towards copyright holders, which does not correspond to the principle of fairness. The article substantiates the expediency of amending the Civil Code of the Russian Federation in terms of fixing in the norms on the protection of trademark rights the possibility of not applying punitive damages to the violator if it is proved that the violator did not know about the illegal nature of his actions.

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About the authors

Vladimir N. Koval

Sevastopol State University

Author for correspondence.
Email: v.n.koval@sevsu.ru

Doctor of Law, Professor of the Department of Civil Law and Process, Director of the Law Institute

Russian Federation, Sevastopol

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