CONSTITUTIONAL RIGHT TO OWN, USE AND DISPOSE THE RESULTS OF INTELLECTUAL AND CREATIVE ACTIVITY: «JUSTIFIED EXPECTATION» FOR OBTAINING PROPERTY SUBJECT TO LEGAL PROTECTION
Authors: Дешко Людмила 
Published: July 2021

In the science regarding Constitutional Law, the issue for restriction of intellectual property rights provokes lively discussions. When registration of trademarks, there increasingly raises a number of theoretical and practical questions: can the state "destroy" the legitimate expectations of the subjects of intellectual property rights by adopting certain legislative acts in order to fulfill its international obligations? Is the decision to apply the provisions of a bilateral agreement to the application for trademark registration, which came into force after the subject was filed into trademark application process, considered as interference into the peaceful use of property? Does the constitutional and legal mechanism for regulating public relations in the field of intellectual property on "expectativa jurídica" issue the need to be improved?

The purpose of this article is to identify the conditions under which the applicant who has applied for registration of a trademark has the right to claim in respect of which he has a "justified expectation" of its implementation, as well as to identify conditions that allow national law or there is insufficient evidence in the settled case-law practice of National Courts to state that an applicant who has applied for registration of a trademark has a “justified expectation” protected by the provisions of the Article 1 of Protocol No. 1 to the Convention. Research methods is the general methods of scientific cognitivism as well as concerning those used in legal science: methods of analysis and synthesis, formal logic, comparative law etc.

In order to benefit from the protection of Article 1 of Protocol No. 1 to the Convention, an applicant who has applied for registration of a trademark must be entitled to claim in respect of which he may affirm that he had at least a “justified expectation” for its implementation. The grounds for concluding that such a “justified expectation” is as follows: the availability of grounds for such a requirement within national law and the consistent practice of National Courts, which shows that the applicant does have sufficient grounds to obtain this very justified expectation. 2. The mentioned reasons allow to affirm about the lack of reasonable grounds within national law or in the settled case-law practice of National Courts that are to state that an applicant who has applied for registration of a trademark has “justified expectation” protected by provisions of the Article 1 of Protocol No. 1 to the Convention: 1) the applicant company had a right that is subject to a certain condition, which was terminated retroactively due to non-compliance with this condition, namely that it did not violate rights of the third parties; 2) there is a dispute/disputes about the registration of a trademark, which being taken into the Court processing in different countries; 3) the applicable rule of national law is sufficiently accessible, accurate and predictable; 4) the criteria for trademark registration are unclear, there are doubts about their proper interpretation, as well as the difficulties associated with the need to analyze various international instruments.

Violation of the Article 1 of Protocol 1 is a retrospective interference by the legislator. The current legislation of Ukraine in the field of intellectual property on “expectativa jurídica” issues when filing an application for trademark registration, as well as on state interference regarding the “justified expectation” of the applicant companies needs to be improved in the light of the case-law practice of the European Court of Human Rights.