Все новости от 23 июля 2004 г.

IP Protection in Russia

The rights of the owners of intellectual property, which may be registered (having rights to inventions, trademarks, etc.), or may exist without such registration (copyright and related rights), need to be constantly protected against possible and actual infringements of third persons. Such infringements may be intentional, or unintentional ones, the latter may result from general ignorance of legal norms.

In this connection several forms of intellectual property protection may be classified: self protection, administrative protection and protection in court.

First of all the owner of the intellectual property should pay attention to self protection against possible infringements, since this particular form of protection is readily available and effective. To begin with, the measures should be taken to notify third persons on existing rights to intellectual property, and on the particular person who is the owner of said rights. For this purpose all subjects of intellectual property should be labeled with special signs, such as TM, or the copyright sign ©, or the owner may use publications and advertisements, which mention a patent for an invention. Such notification allows to reduce the possibility in infringement due to ignorance, which often takes place. Next, the owner should pay special attention the agreements regulating the use of his rights, including those agreements wherein the intellectual property rights are not the main subjects.

It is advisable, that such agreements should be drafted by the professionals in intellectual property protection. A well-drafted agreement may help you to avoid disputes with your licensees, and in case such a dispute takes place, the agreement will help you to win the case. The means of self protection include also setting confidentiality conditions (trade secrets) for the information on the intellectual property subjects belonging to you, in particular, know-how and inventions.

For the purposes of right protection the legislation provides the procedure of administrative protection, which is applied in case the infringement has taken place. A number of disputes on registered rights to inventions, useful models industrial designs, trademarks, etc. are decided at the Board of Appeals and Higher Patent Board at the Russian Agency for Patents and Trademarks (ROSPATENT). In particular, said procedure may be used for settling disputes on invalidating trademarks due to non-use thereof. The administrative procedure may be used to settle the disputes related to unfair competition, resulting in infringement of the intellectual property rights of the owners. The complaints about such actions are filed with the Russian Federation Ministry for Counter-monopoly Policy, or with territorial branches thereof. Unauthorized export or import of intellectual property subjects may be prevented by notifying Russian customs about the exclusive rights to such subjects. The lists of protected rights are distributed to all customs terminals to strengthen the control over the transfer of the intellectual property subjects.

The last line of defense is court. The disputes based on the infringements of intellectual property rights are decided by ordinary courts, or by arbitration courts. The former deal with the disputes in which one party is a natural person, and the latter deal with the disputes between legal persons.

Until recently, there were very few cases related to the infringements of exclusive rights. First, such infringements occurred not often, and, second, the owners of the rights lacked stimuli to take legal actions against the infringes: with the monopoly in foreign trade the access of foreign companies to the Russian market was limited, competition was not practiced, and there were very few owners of intellectual property rights. At present the courts consider more cases related to intellectual property rights. Usually these are infringements of trademarks, video products and computer programs, also the infringements of copyright in literature take place. Regarding the latter cases, there is the Letter of the Higher Arbitration of the Russian Federation, wherein the practice of solving such disputes is analyzed.

Taking into account that such disputes are new and usually very complicated ones, the qualified lawyers and patent attorneys should help to prepare a claim and participate in the proceedings.