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Digital Law Journal

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Vol 5, No 3 (2024)
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ARTICLES

8-18 174
Abstract

This article explores the issue of trademark co-ownership, which arises due to the contradiction between the individualizing function of a trademark and the proprietary nature of exclusive rights. On the one hand, the single-source doctrine requires that a trademark be associated with a single source in the minds of consumers, preventing consumer confusion. On the other hand, the right of co-ownership allows multiple parties to manage the trademark at their discretion, which can disrupt the connection between the mark and its source. The aim of this study is to determine the extent to which models of trademark co-ownership can maintain a balance between these conflicting interests in the modern economy. The development of digital technologies, global platforms, and joint branding has changed consumer behavior, making consumers more informed and less susceptible to confusion. In this context, strict limitations on trademark co-ownership, based on traditional notions of consumer protection, may require reconsideration. The research methodology includes a comparative legal analysis of case law, legislative provisions, and doctrinal sources, as well as elements of economic analysis of law. The article examines contemporary legal approaches to trademark co-ownership, including U.S. case law precedents such as East West Tea Co., LLC v. Puri, as well as alternative regulatory models in other jurisdictions (for example, the German model, which requires the consent of all co-owners for licensing). The study’s findings indicate that existing approaches to trademark co-ownership in the U.S. provide co-owners with significant freedom but may also create risks of bargaining power imbalances and opportunistic behavior. However, in the digital economy, where consumers are more knowledgeable, strict protections against brand confusion may be losing relevance. This opens the possibility for more flexible regulations, where co-ownership of exclusive trademark rights becomes a more sustainable and predictable ownership model.

19-65 179
Abstract

The article is devoted to the study of the legal nature of generative artificial intelligence and its impact on copyright. It examines the features of generative artificial intelligence, which is capable of creating new content in response to user requests (prompts). The focus is on the legal evaluation of results generated using artificial intelligence technologies (the AI outputs) and their comparison with the results of intellectual activity created by humans. The article analyzes the criteria for the protectability of such AI results in the context of Russian legislation and existing international approaches. The author emphasizes that the results of AI created without human participation, within the meaning of the law, cannot be recognized as objects of copyright under Russian Federation law due to the lack of creative contribution and direct human involvement in their creation. Instead, it is proposed to develop a special legal regime for such objects—AI results—that will ensure their economic value and legal protection. Possible legal mechanisms are also considered as tools to protect the results created using AI, provided that there is a significant human creative contribution. The article emphasizes the need for a clear distinction between objects created by AI autonomously, without human participation, and objects created as a result of human creative activity using AI as a creative tool. The author offers regulatory provisions for the regulation of property rights to results generated by AI and considers the prospects for the development of legislation in this area.

66-82 111
Abstract

The article analyzes two opposing approaches to the liability of marketplaces for the sale of defective products in the U.S. and France. The purpose of the study is to compare these models of regulation and identify the peculiarities of the legal status of online platforms in these jurisdictions. The first part of the paper considers the American approach, according to which marketplaces can be held liable for the goods they sell. Doctrinal arguments that justify the possibility of qualifying marketplaces as responsible actors are presented. At the same time, it is emphasized that this approach has developed mainly at the level of case law and has not yet been reflected in legislation. The second part analyzes the French approach that assigns marketplaces the status of intermediaries who are not responsible for the quality of products sold. The key example is a case in which one of the largest marketplaces in Europe, Fnac, was exempted from liability for selling defective products. The author critically analyzes this decision, noting the paradox of French regulation: initially oriented towards enhanced consumer protection, it tends to weaken it in the context of marketplaces. Special attention is paid to the doctrinal distinction between obligations of results and obligations of means. Applying the criteria developed in the doctrine to the circumstances of the case at hand allows us to conclude that the obligation of the marketplace corresponds to the model of the obligation of results. Finally, based on the comparison of different legal regimes, a conclusion is drawn about the advisability of applying Article 1240 of the French Civil Code as a basis for holding the aggregator liable.

ESSAYS

83-94 55
Abstract

Currently, the legal nature of loot boxes, as well as issues related to their legal regulation, remain largely unexamined in domestic doctrine. Nevertheless, this topic is of legitimate interest to society, since, as the practice of developers using this mechanism within games shows, opening containers of this type (loot boxes) can be addictive and, in some cases, lead to financial losses. The purpose of this study is to determine the legal nature of loot boxes and lootboxing. Legal doctrine often supports the trend in some European countries to recognize the purchase of loot boxes as gambling and to introduce a complete or partial ban on games with loot boxes. The article, on the contrary, defends the view that the heterogeneity of loot box mechanics in various online games necessitates a differentiated approach to regulation. Dividing loot box mechanics into those that correspond to the legal nature of gambling and those that can be recognized as an aleatory structure only from the point of view of the approach to risk as the player’s psychological attitude to the outcome of the game will allow for the most fair approach to the issue of licensing or non-licensing the activities of developers of such games. As a result, the author puts forward a number of proposals for the legal regulation of legal relations related to the acquisition of loot boxes.

COMMENTS

95-108 15
Abstract

The relevance of this study stems from the rapid development of the digital financial assets market in the Russian Federation against the backdrop of insufficiently developed accounting principles, which generates legal risks for market participants and impedes the widespread integration of digital assets into the financial sector. The research aims to identify key legal and technical challenges in digital financial assets accounting under current Russian legislation while conducting a comparative analysis of their accounting practices against established frameworks for securities. Particular attention is paid to accounting automation processes where smart contracts serve as instruments for autonomous obligation execution, alongside associated integration issues: risks of software code errors, conflicts with civil law norms, and protection mechanisms for transaction parties. The study includes a comparative analysis of DFAs and uncertificated securities, highlighting formal differences and similarities in their accounting. The author emphasizes complexities in establishing multi-tier digital financial assets accounting systems — specifically regarding the role of nominal holders — and identifies deficiencies in current regulatory approaches. The study concludes that further legislative adaptation to technological realities is imperative, requiring careful balance between state oversight and preservation of blockchain’s decentralized nature. This work contributes to the ongoing discourse on transforming traditional legal institutions within digitalized economies.



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ISSN 2686-9136 (Online)