Wellmarks in the Media

The question of registration usually arises late — once the name is already in use on signage, in advertising and across social media. By that point the business has invested in the sign without holding any rights to it.

In Ukraine, rights in a trademark arise on the date the application is filed, not from the start of actual use. The first-to-file principle applies: priority belongs to whoever applied earlier, irrespective of how long another party has used the name.

An application should be filed before large-scale advertising begins, before entry onto marketplaces, and before negotiations on franchising or investment. In each of those situations the counterparty will require proof of rights — a certificate, or at minimum a filed application.

The more onerous outcome is not a refusal of registration but the registration of an identical sign by another party. Two courses then remain: acquiring the rights by contract, or changing the name together with all advertising materials, packaging and documentation.

Copyright in a photograph arises upon its creation and belongs to the photographer, irrespective of whether a notice of protection appears on the work or whether it has been made publicly available. Posting an image to a social network does not extinguish copyright.

The typical infringement consists of using an image taken from a website or a social network in advertising, a catalogue or a marketplace listing. The absence of a notice prohibiting copying has no legal significance: use of a work requires the rightholder’s permission.

The author’s first step is to record the infringement: a screen capture showing the page address and date, the saved link and, where possible, certification of the page content. Without such evidence, deletion of the publication by the infringer makes the fact of use impossible to establish.

The next stage is a demand addressed to the infringer, and only then recourse to the courts. The law confers the right to require both cessation of use and payment of compensation, the amount of which is determined by the nature and extent of the infringement rather than the value of the work itself.

A commercial concession agreement transfers the right to use a bundle of rights, and the trademark is its central element. Absent registration, the agreement is deprived of its principal subject matter.

In practice the franchisee pays royalties for a sign to which the franchisor’s rights are not documented. Such an agreement is vulnerable to challenge, and the franchisee may continue using the signage without further payment.

The second consideration is expansion of the network. As the number of outlets grows the sign becomes more recognisable, and with it the risk of registration by another party.

Registration is therefore provided for while the franchise is still being prepared: first the application, with Nice classes covering every line of the network’s activity, then the model agreement, and only then the sale.

The subject matter of a franchise is rarely confined to a trademark. As a rule a complex of objects is transferred: the trademark, the trade name, know-how and operating standards, the design of premises and, in some cases, software and supplier databases.

Each object is protected in its own way: the trademark by a certificate, know-how by a trade-secret regime and a non-disclosure agreement, design by registration of an industrial design or by copyright. A general reference to “the brand” in the agreement is not sufficient to protect any of them.

The consequences of termination are regulated separately: the period within which the franchisee must remove the signage, withdraw the materials and cease applying the standards. Without that provision a former partner continues trading using your identity.

Before the franchise is launched, every clause of the agreement should be supported by a corresponding document — a certificate, a registration, or an established trade-secret regime.

As a general rule, photographing and filming a person are permitted only with that person’s consent. Filming in public places is an exception which does not extend to cases where a specific individual becomes the principal subject of the recording — consent is then required.

The right to privacy is protected separately. Filming in a dwelling, a medical facility, a fitting room or any other place where a person reasonably expects privacy is impermissible, irrespective of the purpose or intention of the person recording.

Public figures enjoy a narrowed scope of protection, but only in the part relating to their public activity. The circumstances of their private life are protected on general grounds.

Where filming has already taken place, the priority is to record the circumstances rather than to demand deletion on the spot. A demand to cease distribution follows and, where the elements of an offence are present, criminal liability arises for violating the inviolability of private life.

A trademark is an intangible asset which may be recognised on the balance sheet, valued, assigned, licensed under a licence agreement or pledged as security.

The condition is the existence of legal title. An unregistered sign carries no confirmed economic rights and is therefore neither subject to valuation nor recognised on the balance sheet.

This acquires practical significance on a sale of the business or when raising investment. Legal due diligence begins with the schedule of intellectual property rights, and the absence of a certificate either reduces the valuation or prevents the transaction from completing.

The value of a mark is determined not by the cost of registration but by the extent of its use: time in the market, the Nice classes covered, the geography of protection and recognition. Rights acquired earlier therefore carry a higher valuation over time.

Where private material is being distributed, entering into negotiations with a person advancing financial demands is inadvisable. Meeting such demands does not halt distribution and as a rule leads to further demands.

The priority is to build the evidentiary record: screen captures showing page addresses, the date and time, saved links and, where possible, certification of the page content. Material is removed quickly, and only what has been recorded remains as evidence.

Complaints are submitted to the platforms in parallel. Most social networks provide a dedicated procedure for intimate images distributed without consent, which operates more promptly than court proceedings.

A police report is filed irrespective of whether the offender has been identified. Distributing confidential information without consent and extortion constitute separate criminal offences, and the investigation has procedural means of identifying the person from the platform’s records.

Distribution of a private recording without consent infringes several rights at once: the inviolability of private life, the individual’s right to their own image and, where the recording was made by you, copyright in it.

The order of steps does not depend on how widely the matter is publicised: record the fact of distribution, approach the platforms with a takedown demand, file a police report. The sequence matters — once the material is removed, proving distribution becomes substantially more difficult.

Liability attaches not only to the person who made or published the recording, but also to those who knowingly distributed it further. This covers both publications in messenger channels and reposting on social networks.

It should be borne in mind that any recording made in a private setting remains potentially exposed. Legal remedies operate after the infringement and do not restore privacy in full.

The risk of not registering materialises not as a fine but as a demand from the owner of a registered similar mark to cease use of the sign. The legal basis for that demand lies with them.

The cost of the resulting change of name then arises: signage, packaging, labels, the website, the domain name, the application, advertising campaigns, documentation and contracts. Those costs are incomparably higher than timely registration.

Accumulated recognition of the sign is lost in addition. An audience oriented to the former name loses its connection with the company after the change, and recovering it requires further expenditure.

The first stage is therefore not filing but examination of the sign. A search for identical and similar marks establishes whether the name is free before any investment is made in it.

Copyright in a text arises upon its creation and requires neither registration nor any further formality. The difficulty lies not in the existence of the right but in proving it: in a dispute, confirmation of priority of creation is decisive.

The evidentiary record is therefore built in advance: publication bearing a fixed date, deposit, or state registration of copyright. The last of these produces a document usable both before a court and in dealings with counterparties.

A separate case is works created to order. Where the contract contains no express provision transferring economic rights, those rights remain with the author and the client uses the material without sufficient legal basis.

Where a text has been copied, the sequence of steps is standard: recording the page, a demand to the infringer and to the platform and, if required, application to the court to cease the use and recover compensation.