DEVELOPMENT OF THE RUSSIAN LEGISLATION IN THE FIELD OF PROTECTION OF INTELLECTUAL RIGHTS ASSETS AND EQUIVALENT MEANS OF INDIVIDUALIZATION.
TABLE OF CONTENTS Introduction I. Pre_revolutionary Period I.1. Means of Individualization II. The Soviet Period III. The Post_soviet Period III.1. Changes in the Legislation III.2. Intellectual Property Rights Protection III.3. Establishment of the Court for Intellectual Property Rights III.4. Statistics of Cases Considered by the Court for Intellectual Property Rights As of the End of May 2014 IV. Conclusion Bibliography
The problem of legal protection of intellectual property occurs simultaneously with the emergence of market relations. However, the legislator has not paid attention to the protection of intellectual property for a long time. The Declaration of the Republic of Venice of 1474 may be considered as the first legal instrument to recognize its existence. According to the Declaration, any citizen, who made a machine previously unused in the state, received a privilege, whereby all the other persons were not allowed to produce such devices for ten years. (1) It is worth mentioning that a rapid growth of printing was an important impetus for the development of intellectual property and copyright, in particular. It is obvious that the legislator could not but respond to the new phenomenon that needed legal regulation.
I. PRE-REVOLUTIONARY PERIOD
I.1. Means of Individualization
Domestic legislation has its own peculiarities in the area under consideration. Initially, brands were the first means of individualization. The applicable laws originated in the XVII century, but the laws adopted in the area did not distinguish a trademark as an independent entity until the end of the XIX century: the legislator perceived brands as a means of promoting public interests--primarily, customs (differentiation of domestic and foreign goods) and fiscal ones, rather than as a means of individualization of goods (2).
On February 05, 1830 the Regulation on the Branding of Products of Russian Manufactories, Plants and Factories was approved, which set out obligations for the owners of hatteries, clothes and other factories to have brands. (3) However, the situation changed significantly as late as in 1896, when the law On Trademarks (Factory and Trademarks and Brands) was passed, which brought domestic laws in the field of trademarks much closer to the European legislation that had undergone the relevant reforms several decades earlier (4).
The above law clearly defined a trademark as a means of individualization of goods. Trademarks were the marks displayed by the manufacturers and traders on the goods or on the packaging and containers where the latter were kept to distinguish them from the goods of other manufacturers and traders, for example: prints, sealing marks, cork seals, brands, embroidered or woven labels, labels, covers, paintings, original packaging, etc. A trademark was legally defined as an outer mark, whereby a trader sought to distinguish his or her goods from the goods of any other merchant in the consumers' perception. If the products with a trademark are popular, the other merchants shall be tempted to use such a "good" trademark, misleading the buyers; thus, the exclusive right to the trademark protects the fair trader. A registration regime was provided for a trademark as a whole, and the conditions for granting protection were stipulated: in particular, an image that had come into general use to distinguish the goods of a certain kind, or that did not merely have a sufficient distinctive character, could not serve as a trademark. The trademark, as a rule, should contain a literal image (the name of entrepreneur, the company name, etc.); figurative trademarks were "discouraged" without being banned. (5)
II. THE SOVIET PERIOD
The Soviet authorities adopted the first regulations in the field of the means of individualization in 1918 (Decree on the Duty on Trademarks). According to the Decree, all the certificates issued by the Tsarist Russia to both domestic and foreign firms ought to be registered in the People's Commissariat of Trade and Industry. Unregistered certificates were hereinafter considered void. In addition, the Decree determined the amount and procedure for the payment of the registration fee for the marks.
On July 17, 1919 the Supreme Council of National Economy (VSNKh) adopted the Regulation On the Trademarks of the State-Owned Enterprises, whereby new marks of a purely reference nature replaced the previous ones. The mentioned marks were simple and contained the company name as mandatory elements, as well as the name of the parent department, the VSNKh central board and the coat of arms of the correspondent Republic. However, such marks were devoid of commercial content and did not function as a conductor of products between the producer and the consumer.
However, the right of companies to label their products in order to distinguish them from the goods of other manufacturers was expressly established only by the SNKh Decree On the Trademarks of 1922. The Decree secured the right whereby industrial and commercial enterprises, regardless of whether they were public or private, could mark their products with an outward sign and use it solely to distinguish their products from someone else's. However, the Decree did not establish the unified form of the trademark.
The Decree introduced compulsory registration of the marks to be implemented by the Committee for Inventions and also provided for restrictions, whereby the following marks were not recognized as trademarks:
--marks that entered into general use as a marking for goods of a certain kind--the so-called well-known marks;
--marks consisting of drawings, individual letters or numbers, the content, location or combination whereof do not have specific distinctive characteristics;
--marks indicating the method, time or place of production of the goods, its price, measure or weight, as well as the composition, quality and purpose.
It was forbidden to use the signs not sufficiently distinct from those already registered, or signs that could create an impression of equivalence between the given product and any other.
Later, another restriction was established by the Resolution of the SNKh dated July 18, 1923 "On The Trademarks" that prohibited to use trademarks owned by the former owners of nationalized enterprises. (6)
Later, together with the winding down of the New Economic Policy (NEP) and transferring the entire production to the state, the state policy in the field of trademarks changed as well. The 1936 the Decree on Industrial Brands and Trademarks introduced an obligation for the companies to label products with manufacturing brands containing comprehensive information on actual producers of the goods; for this purpose, labeling the goods with trademarks became optional, and their registration was carried out according to their industry sector requirements by various People's Commissariats. The changes in the specified area took place as late as in 1962, when the Decree of the Council of Ministers of the USSR "On the Trademarks" was adopted. It contained:
--a definition of a trademark and a service mark;
--a list of designations not to be applied as trademarks;
--the provision requiring compulsory state registration of the marks prior to their application;
--a list of application materials;
--the rule of establishing the priority date;
--a list of grounds for cancelling the registration;
--a list of grounds for terminating the right to the exclusive use of a trademark. (7)
Talking about the means of individualization, we should also mention the Regulations on the Firm of 1927 that set out a number of requirements with regard to the companies naming and stated, among other things, that "the right to a firm is the right to the exclusive use of a brand name in transactions, in outdoor signs, announcements, advertisements, in the official forms, in the accounts, on the goods of an enterprise, their packaging, etc." It is worth noting that the law was repealed in 2008 only, after the introduction of Part IV of the Civil Code of the Russian Federation.
Brand names were actually removed from the substantive scope of the legal regulation at the following stages of the development of the legislation on the means of individualization during the Soviet period. Thus, according to Article 29 of the Civil Code of the Russian Soviet Federated Socialist Republic, the rights and responsibilities of entities associated with the use of brand names were to be determined by the legislation of the USSR. However, neither the fundamentals of the civil legislation of the USSR and the Union Republics of December 08, 1961, nor the Regulation on the Socialist State Production Enterprise approved by the Resolution of the Council of Ministers of the USSR of October 04, 1965, contained detailed rules concerning a company name. In the later acts of the Union, except for brief references to the need to include the company name into the charter of the letter, there were also no specific rules on the firm. The exceptions were: Article 3 of the Law of the USSR no. 1829-1 of December 11, 1990 "On Banks and Banking Activity" that contained the rule on using the term "bank" or other phrases containing the term specified in the corporate name; Article 149 of the Fundamental Principles of Civil Legislation of the USSR and the Republics no. 2211-I5 of May 31, 1991 stating that the name of a legal entity was subject to registration by way of inclusion into the state register of legal entities.
The term "intellectual property" widely used nowadays was officially recognized in the USSR in 1968, after adoption of the Decree "On Ratification of the Convention Establishing the World Intellectual Property Organization (WIPO)" by the Presidium of the Supreme Soviet of the USSR.
III. THE POST-SOVIET PERIOD
III.1. Changes in the Legislation
On August 03, 1992 "The Fundamental Principles of Civil Legislation of the USSR and the Republics" were enacted in connection with the change of the legislation. In 1992 "The Patent Law" and "The Law on Trademarks, Service Marks and Places of Origin" entered into force. In 1993 the new "Law on Copyright and Related Rights" came into force. Then, all specified laws were amended on several occasions.
In 1995 Russia joined one of the fundamental international conventions in the field of intellectual property--the Berne Convention for the Protection of Literary and Artistic Works of 1886.
Further development of intellectual property legislation followed the path of combining a number of laws related to various types of intellectual property in a single instrument. It was embodied in Part IV of the Civil Code of the Russian Federation that entered into force in 2008.
III.2. Intellectual Property Rights Protection
Intellectual property rights are protected through legal proceedings in most of the cases: in courts of general jurisdiction or arbitration courts. It is also possible for the parties to apply to an arbitration court in accordance with the arbitration agreement and to the mediation procedure. However, in some cases there is a mandatory pre-trial administrative procedure for certain disputes to be considered by the Federal Executive Authority on Intellectual Property (for example, disputes over termination of trademark protection). As provided in Article 1248 of the Civil Code of the Russian Federation, the decision of the tribunal shall take effect immediately and may be appealed in court.
III.3. Establishment of the Court for Intellectual Property Rights
The establishment of a special court for intellectual property rights was discussed in 2010 at the meeting of the Presidium of the Supreme Arbitration Court of the Russian Federation and at the meeting of the Presidents of arbitration courts in the city of Samara. Simultaneously, a draft law on founding the Supreme Patent Court of the Russian Federation was being considered and subsequently it was rejected.
On December 07, 2011 Federal Constitutional Law no. 4-FKZ "On Amendments to the Federal Constitutional Law on the Judicial System of the Russian Federation" and Federal Constitutional Law "On Arbitration Courts in the Russian Federation" came into force and the Court for Intellectual Property Rights was founded in the system of arbitration courts. The Law provided for the foundation of the Court for Intellectual Property Rights by February 01, 2013. The Court for Intellectual Property Rights was registered as a legal entity on January 21, 2013 and started its work on July 03, 2013.
The establishment of the Court for Intellectual Property Rights has led to the change in jurisdiction for a number of cases. The Court is authorized to consider the cases as the first instance court with regard to challenging the regulations passed by federal executive bodies that affect the rights and legitimate interests of the applicant in the area of legal protection of intellectual property assets and the means of individualization, as well as contentious cases with regard to granting or termination of legal protection for intellectual property and equivalent means of individualization of legal entities, goods, services and businesses (except for the copyright and related rights, topographies of integrated circuits) regardless of the structure of the parties to such cases. It means that a number of cases involving individuals (non-entrepreneurs) that have already been considered by the courts of general jurisdiction are now dealt with by the Court for Intellectual Property Rights.
III.4. Statistics of Cases Considered by the Court for Intellectual Property Rights as of the End of May 2014
The Court for Intellectual Property Rights has received a total of 2,121 complaints and claims.
The Court for Intellectual Property Rights has considered 422 cases as the court of first instance.
The total of 821 case was considered by the cassation instance, 73 cases whereof were considered by the Presidium. Decisions in 25 cases were altered or quashed.
Over a half of the disputes brought before the Court as a court of first instance were disputes over the early termination of legal protection of a trademark (241 case); 158 cases were the appeals against the acts (omissions to act) of Rospatent (The RF Federal Service of Intellectual Property). Decisions in 129 cases concern trademarks and 29 decisions were made with regard to patents.
The history of legal regulation and protection of intellectual property started about 500 years ago, but the legislation in the area remained rudimentary for a long time. Thus, only the printing development prompted the states to regulatory consolidation of existing principles. Regulations governing the procedure for granting patents (privileges) were available in Russian law as early as in the XIX century. Further progressive development of intellectual property rights was briefly interrupted by the events of the early XX century. However, it was in the last century that the Soviet Union became a party to core international treaties that protected the rights and interests of inventors and owners. Suffice it to say that the USSR ratified the Paris Convention for the Protection of Industrial Property of 1883 in 1968.
The development of science and technology, emergence of new forms of personal expression, especially protection of intellectual property arising from the very nature of exclusive rights, growing complexity of the market turnover--all those factors have led to the need for new theoretical and practical tools for the resolution of disputes arising in the area of intellectual property rights. Attempts to create a specialized court taking into account the achievements of foreign countries (patent courts in Germany, the United Kingdom, the USA and other countries) were made in the early 1990s. However, the idea was not put into practice in time to meet the objective circumstances. Therefore, the creation of the Court for Intellectual Property Rights in 2013 within the framework of the system of arbitration courts as a specialized judicial body to consider disputes primarily in the field of industrial property is a significant step in the process of improving judicial protection of intellectual property rights.
(1.) Introduction to intellectual property. WIPO publication No. 478 (R).ISBN92-805-0752-4.WIPO, 1998. P. 199. Item 9.89.
(2.) See: The Federal Law of March 12, 2014 N[degrees] 35-FZ "On Amending Part I, II and Iv Civil Code of the Russian Federation and certain legislative acts of the Russian Federation" // Collected Legislation of the Russian Federation. 2014. No. 11.PT. 1100.
(3.) Online resource Lawmark // URL // http://lawmark.ru/ articles.
(4.) Sudarikov S. A., Intellectual Property Law: textbook.--M. : TC Led-bi, Univ Avenue, 2008.--S. 7.
(5.) M. N. Pankova. The evolution and development of legislation on means of individualization in Russia. Bulletin of the Military University.2011. No. 3 (27). P. 156-163.
(6.) Rosen J. S. Trademarks S. 171
(7.) D. Romanenko. The evolution of the brand [El. resource] // available at:: http://www.romanenko.biz/ru/library/article_tm_evolution.html
(8.) G. F. Shershenevich. The course on business law. M., 1919. P. 186-187.
(9.) Cities O. A. a Right to the means of individualization: the trademarks, service marks, appellations of origin of goods, trade names, commercial designations. M., 2006. P. 21
(10.) The decree of the USSR Council of Ministers "On trademarks" of 15 may 1962. No. 442.
By Valeria Lambina (Russian Federation)
Assistant Chairman of the First Judicial Composition of the Court for Intellectual Property rights, Deputy Head of the Department of Intellectual Property Rights, the Kutafin Moscow State Law University.(MSAL)
Russia, 123995, Moscow, Sadovaya-Kudrinskaya street, 9 sip.vlambina@ARBITR.RU
(1) S.A. Sudarikov Intellectual property rights: textbook.--Moscow : TK Vel-bi, Prospekt Publishers, 2008.--P.7.
(2) M. N. Pankova. Evolution and development of legislation on the means of individualization in Russia. The Military University Bulletin.2011. No. 3 (27). P. 156-163.
(3) Ya.S. Rozen. Trademarks P. 171.
(4) D. Romanenko. Trademark Evolution [Electronic resource] // URL: http:// www.romanenko.biz/ru/library/article_tm_evolution.html
(5) G.F. Shershenevich. Commercial Law Course. Moscow, 1919. P. 186-187.
(6) O.A. Gorodov Right to the Means of Individualization: trademarks, service marks, appellations of origin of the goods, trade names, commercial designations. Moscow, 2006. P. 21
(7) Decree of the Council of Ministers of the USSR No. 442 of 15 May 1962 On Trademarks.
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|Title Annotation:||THE UNION OF HISTORY AND MODERNITY IN MAKING AND IMPLEMENTING LAW|
|Publication:||Kutafin University Law Review|
|Date:||Oct 1, 2016|
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