(Selection, processing and comment of PhD. Lecturer Ciprian Raul Romițan)
Aurelian Gabriel Uluitu**
Abstract
The performance of the activity by the employee, based on the individual employment contract concluded with his employer, implies, mainly, the observation of the specific effects that this type of agreement generates in the plan of manifestation of the legal employment relationship. However, the practice of labor relations has shown that there are many situations in which, along with the actual content of the relationship between employer and employee, there may be effects that exceed, from a legal point of view, the regulatory framework applicable to individual employment. We refer to the situations in which either the actual activity of the employee falls within the sphere of manifestation of intellectual property rights, or his activity presupposes, along with other elements that outline the object of the contract, and landmarks specific to the birth and exercise of intellectual property rights. In this study, we aimed to highlight the legal solutions applicable to those circumstances in which the employee is, at the same time, the owner (or possible owner) of some intellectual property rights, as well as a
number of aspects deduced from the practice of employment relationships, including some that have been brought before the Courts for settlement.
* Studiul a mai fost publicat în Ciprian Raul Romițan, Paul George Buta (editori coordonatori), IN HONOREM – VIOREL ROȘ, Studii de drept privat și public, Ed. Hamangiu, București, 2021, pp. 583-598.
** Conf. univ. dr., Universitatea „Nicolae Titulescu” București, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
George-Mihai Irimescu**
Abstract
The works are creations of the spirit, springing from human creativity, and protected by copyright laws. Trademarks, on the other hand, are distinctive signs used in trade by their proprietors, and not only, to differentiate on the market goods or services which have different commercial origins. As such, what do the two have in common? A certain level of creativity in their creation, meant to serve two different purposes: in the case of works, creativity serves to meet the condition of originality, while in the case of trademarks it can serve – although not necessarily – to create a sign that differs from other signs already on the market. However, if in the case of originality, creativity is a quasi-indispensable element, distinctiveness is not always the fruit of a creative effort. But what happens when the element of creativity is present? Then we can find ourselves in a situation where works that are likely to be protected by copyright are also protected as trademarks. As such, this article will address some such specific situations.
* Studiul a mai fost publicat în Ciprian Raul Romițan, Paul George Buta (editori coordonatori), IN HONOREM – VIOREL ROȘ, Studii de drept privat și public, Ed. Hamangiu, București, 2021, pp. 547-564.
** Asistent univ. drd., Universitatea „Nicolae Titulescu” București, Facultatea de drept, E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
Bogdan Bularda*, Elena Grecu**
Abstract
The article analyses the usefulness and the importance of colour trademarks in the commercial market and how a company’s need to hold such a trademark appears. To this end, the article illustrates the requirements for the registration of a colour trademark, as well as the limits imposed by practice and case law both at the European and international level, focusing on practical examples and decisions that set concrete directions for the protection of colour trademarks. The conclusions highlight that despite the fact that a debate concerning the scope of the protection of such a trademark stays valid, there are certain factors relevant in the evaluation of this kind of cases, such as the company’s efforts and its history related to a certain colour, but also the possibilities of the competitor to offer a viable alternative and to effectively promote its own products and services. Also, noteworthy are the advantages acquired by a company compared to its competitors when it manages to complete successfully such a procedure, as well as the disadvantages of a failure which guarantees to the competitors the legal possibility to use a certain
colour a third company invested in to create an association in the public mind between the company and that colour.
* Studiul a mai fost publicat în Ciprian Raul Romițan, Paul George Buta (editori coordonatori), IN HONOREM – VIOREL ROȘ, Studii de drept privat și public, Ed. Hamangiu, București, 2021, pp. 470-483.
* Avocat, SCA Grecu și Asociații, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
** Avocat, SCA Grecu și Asociații, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
Alin Speriusi-Vlad**
Abstract
Intellectual property is the best domain for studying the problematic of intangible assets and intangible things regulated by art. 535 C. civ. In this manner we can determine in which measure the intellectual creations are the intangible assets over that can be constitute patrimonial rights. The premise of art. 535 C. civ. is the existence of intangible assets over that can be constitute, after their emergence, a patrimonial right and in this manner the intangible thing becomes an intangible asset. The intellectual creation likely to be legally protected is, however, protected from its emergence, more precisely by the simple fact of its execution, even if unfinished [according to art. 1 alin. (2) of the Law no. 8/1996], or according to art. 33 alin. (1) point b) of the Law no. 64/1991, from the moment of the application of the product or of the process [this being the initial object of the invention according to art. 6 alin. (1) of the Law no. 64/1991] or from the moment of taking the effective and serious measures for producing and using the product or the process that represents the object of the invention and from the moment of the fulfillment of the substantives conditions of the trade mark according to art. 5 alin. (2) art. 6 alin. (3) point c) and e) and art. 13 alin. (1) of the Law no. 84/1998. Regarding the intellectual creations from the public domain, it is impossible to constitute over them intellectual property patrimonial rights, eventually other rights from another domain. So, the intellectual creations legally protected cannot be the intangible thing referred to in the Civil code. The definition of the intangible asset by the patrimonial right grafted to the intangible thing is not essential for recognizing the possibility of constituting real rights over them (the intangible assets), either in Romania and Quebec, where formally the new civil Code does not refer to things, but to corporal and intangible assets. Also art. 542 does not create an opposition between assets and rights over them (these rights being also assets), this last regulation only assimilates rights over assets
in movable and immovable assets, the real rights over immovables assets being assimilated to them, according to alin. (1), and others being movables, according to alin. (2) and in consonance with art. 539 alin. (1), that stipulates what is not movable is immovable. A distinction between the right and its object (thing or asset) is important, considering that only in this manner we can identify the patrimonial right that forms the object of the appropriation of another patrimonial right, the first patrimonial right being related to the object of the legal relation in which content is found the second patrimonial right, this being the only role of art. 535 and of the legal notion of intangible thing. For tangible assets the rule is the appropriation, respectively the constitution and the free transmission of the economic rights over them, excepting the prohibitions established by the law, instead of the intangible assets where the rule is the impossibility of their appropriation, respectively the impossibility of constitution and transmission of them, excepting the case when this appropriation (constitution and transmission of the rights) is allowed by the law. Such appropriation is natural for tangible assets, and, equally, objectively impossible for intangible assets. The intangible assets, generally, and intellectual creations, particularly, are brought in the law hemisphere being object of an appropriation only if the law establish an exclusive right over them. If this is not the case, the intellectual creations move freely and cannot be appropriated by any person. The identification of the assets protected in the intellectual property field is done by fixing the creations of the mind protected. For tangible assets, the idea of (mandatory) authorization for obtaining the property right is dangerous because it accredits the idea that property exists only if allowed by the law, the content (including the existence) of the subjective property right varies according to the good whim of the legislator. The legal norms do not introduce the intellectual creation in the civil circuit, but are recognizing some economic rights for a limited term, the route of the intellectual creation towards the public domain is being suspended during this term. Even more, from the regulation of the prerogatives over the intellectual creation results that we are not before a property right. The legislation regulates thorough each prerogative, which is not specific for a real property right, that are actually implied by the general provisions of art. 555 C. civ.
* Studiul a mai fost publicat în Ciprian Raul Romițan, Paul George Buta (editori coordonatori), IN HONOREM – VIOREL ROȘ, Studii de drept privat și public, Ed. Hamangiu, București, 2021, pp. 406-436.
1 Conf. univ. dr. la Universitatea de Vest din Timișoara, Facultatea de drept, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
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