III. INTELLECTUAL PROPERTY RIGHT

Topic 23. RIGHTS TO THE RESULTS OF INTELLECTUAL ACTIVITIES AND MEANS OF INDIVIDUALIZATION: GENERAL

After a lengthy preparation of the project and serious disputes regarding the admissibility of including in the Civil Code a set of norms governing copyright relations and of both a civil law and administrative law nature, the legislator adopted Part Four of the Civil Code of the Russian Federation, which includes Sec. VII (Ch. 69 - 77) and comes into force on January 1, 2008.

For the first time in the fourth part of the Civil Code, general provisions relating to the rights to the results of intellectual activity and equated means of individualization of legal entities, goods, works and services are highlighted. In ch. 69 of the Civil Code provides a list of objects constituting intellectual property. In accordance with Art. 1225 of the Civil Code, the results of intellectual activity and equated means of individualization of legal entities, goods, works, services and enterprises that are granted legal protection (intellectual property) are:

1) works of science, literature and art;

2) programs for electronic computers (computer programs);

3) databases;

4) performance;

5) phonograms;

6) communication on the air or by cable of radio or television programs (broadcasting of on-air or cable broadcasting organizations);

7) inventions;

8) utility models;

9) industrial designs;

10) selection achievements;

11) topology of integrated circuits;

12) production secrets (know-how);

13) trade names;

14) trademarks and service marks;

15) names of places of origin of goods;

16) commercial designations.

Such results of intellectual activity as inventions, utility models and industrial designs are sometimes referred to as industrial property. The legislator introduced a new concept of "intellectual rights", which refers to the rights to the above objects, which include an exclusive right, which is a property right, and in cases provided for by the Civil Code, also personal non-property rights and other rights (the right to follow, the right to access and etc.) (Article 1226 of the Civil Code).

As stated in Art. 1227 of the Civil Code, intellectual rights do not depend on the ownership of the material carrier (thing) in which the corresponding result of intellectual activity or means of individualization is expressed. The author of the result of intellectual activity is recognized as a citizen whose creative work created such a result. The author of the result of intellectual activity has the right of authorship, and in cases provided for by the Civil Code, the right to a name and other personal non-property rights. These rights are inalienable and non-transferable. Waiver of these rights is void. Authorship and the name of the author are protected indefinitely. After the death of the author, the protection of his authorship and name can be carried out by any interested person, with the exception of cases provided for in paragraph 2 of Art. 1267 and paragraph 2 of Art. 1316 GK.

The exclusive right to the result of intellectual activity created by creative work initially arises from its author. This right may be transferred by the author to another person under an agreement, and may also be transferred to other persons on other grounds established by law. The rights to the result of intellectual activity created by the joint creative work of two or more citizens (co-authorship) belong to the co-authors jointly (Article 1228 of the Civil Code).

A citizen or legal entity may own the exclusive right to the result of intellectual activity or means of individualization. Such a name of this right is due to the fact that no one has the right to use the result of intellectual activity or a means of individualization without the consent of its owner. According to Art. 1229 of the Civil Code, the specified subject (copyright holder) has the right to use such a result or such a means at its own discretion in any way that does not contradict the law. The right holder may dispose of the exclusive right to the result of intellectual activity or to a means of individualization (Article 1233 of the Civil Code), unless otherwise provided by the said Code.

The right holder may, at its discretion, allow or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission). Other persons cannot use the corresponding result of intellectual activity or means of individualization without the consent of the right holder, except as provided for by the Civil Code.

The exclusive right to the result of intellectual activity or to a means of individualization (except for the exclusive right to a company name) may belong to one person or several persons jointly. In the cases provided for in paragraph 3 of Art. 1454, paragraph 2 of Art. 1466, paragraph 1 of Art. 1510 and paragraph 1 of Art. 1519 of the Civil Code, independent exclusive rights to the same result of intellectual activity or to the same means of individualization may simultaneously belong to different persons.

Limitations of exclusive rights to the results of intellectual activity and to means of individualization, including in the case when the use of the results of intellectual activity is allowed without the consent of the right holders, but with the preservation of their right to remuneration, are established by the Civil Code.

Exclusive rights to the results of intellectual activity and means of individualization are valid for a certain period, except for the cases provided for by the Civil Code (Article 1230 of the Civil Code).

The rules on the validity of exclusive and other intellectual rights on the territory of the Russian Federation are contained in Art. 1231 GK. According to this article, on the territory of the Russian Federation there are exclusive rights to the results of intellectual activity and to the means of individualization established by international treaties of the Russian Federation and the norms of the Civil Code. Personal non-property and other intellectual rights, which are not exclusive, are valid on the territory of the Russian Federation in accordance with par. 4 p. 1 art. 2 GK.

When recognizing an exclusive right to the result of intellectual activity or to a means of individualization in accordance with an international treaty of the Russian Federation, the content of the right, its effect, restrictions, the procedure for its implementation and protection are determined by the Civil Code, regardless of the provisions of the legislation of the country of origin of the exclusive right, unless such an international treaty or the Civil Code provided otherwise.

In the cases provided for by the Civil Code, the exclusive right to the result of intellectual activity or to a means of individualization is recognized and protected subject to state registration of such a result or such means (clause 1, article 1232 of the Civil Code). In cases where the result of intellectual activity or a means of individualization is subject to state registration in accordance with the Civil Code, the alienation of the exclusive right to such a result or such means under an agreement, the pledge of this right and the granting of the right to use such a result or such means under an agreement, as well as the transfer the exclusive right to such a result or to such a means without an agreement are also subject to state registration, the procedure and conditions of which are established by the Government of the Russian Federation. In cases of disposition of an exclusive right under an agreement, the said registration is carried out through the state registration of the relevant agreement.

The basis for state registration of granting the right to use the result of intellectual activity or means of individualization may also be a court decision. The basis for state registration of the transfer of an exclusive right to the result of intellectual activity or to a means of individualization by inheritance is a certificate of the right to inheritance, except for the case provided for by Art. 1165 GK.

Failure to comply with the requirement for state registration of an agreement on the alienation of the exclusive right to the result of intellectual activity or to a means of individualization, or an agreement on granting to another person the right to use such a result or such means, shall entail the invalidity of the corresponding agreement. In case of non-compliance with the requirement for state registration of the transfer of an exclusive right without an agreement, such a transfer is considered not to have taken place (paragraphs 2 - 6 of article 1232 of the Civil Code).

In the cases provided for by the Civil Code, the state registration of the result of intellectual activity can be carried out at the request of the right holder. In these cases, the rules of paragraphs 2-6 of Art. 1232 of the Civil Code, unless otherwise provided by this Code (clause 7 of the said article).

According to Art. 1233 of the Civil Code, the right holder may dispose of his exclusive right to the result of intellectual activity or to a means of individualization in any way that does not contradict the law and the essence of such an exclusive right, including by alienating it under an agreement to another person (an agreement on the alienation of an exclusive right) or granting another person the right use of the corresponding result of intellectual activity or means of individualization within the limits established by the agreement (license agreement). The conclusion of a license agreement does not entail the transfer of the exclusive right to the licensee.

An agreement that does not expressly state that the exclusive right to the result of an intellectual activity or to a means of individualization is transferred in full is considered a license agreement, with the exception of an agreement concluded with respect to the right to use the result of an intellectual activity specially created or created for inclusion in a complex object. (paragraph 2, clause 1, article 1240 of the Civil Code).

One of the types of agreement on the disposal of the exclusive right to the result of intellectual activity or to a means of individualization is an agreement on the alienation of an exclusive right. The general provisions relating to this agreement are contained in Art. 1234 GK. In paragraph 1 of this article, a definition of this agreement is given. In accordance with it, under an agreement on the alienation of an exclusive right, one party (right holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full to the other party (acquirer). An agreement on the alienation of an exclusive right is concluded in writing and is subject to state registration in the cases provided for in paragraph 2 of Art. 1232 GK. Failure to comply with the written form or the requirement for state registration entails the invalidity of the contract.

Under an agreement on the alienation of an exclusive right, the acquirer undertakes to pay the right holder the remuneration provided for by the agreement, unless otherwise provided by the agreement. In the absence of a condition on the amount of remuneration or the procedure for determining it in the compensated agreement on the alienation of the exclusive right, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply.

Another type of agreement on the disposal of the exclusive right to the result of intellectual activity or to a means of individualization is a license agreement. Unlike an agreement on the alienation of an exclusive right, under a license agreement one party - the owner of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to grant to the other party (licensee) the right to use such a result or such means within the limits provided for by the agreement. The licensee may use the result of intellectual activity or means of individualization only within the limits of those rights and in the ways provided for by the license agreement. The right to use the result of intellectual activity or means of individualization, which is not directly specified in the license agreement, is not considered granted to the licensee.

The license agreement is concluded in writing, unless the Civil Code provides otherwise. In the cases provided for in paragraph 2 of Art. 1232 of the Civil Code, the license agreement is subject to state registration. Failure to comply with the written form or the requirement for state registration entails the invalidity of the license agreement.

The license agreement must indicate the territory in which the use of the result of intellectual activity or means of individualization is allowed. If the territory in which the use of such a result or such means is allowed is not specified in the contract, the licensee has the right to use them throughout the entire territory of the Russian Federation.

The period for which a license agreement is concluded may not exceed the period of validity of the exclusive right to the result of intellectual activity or to a means of individualization. In the event that the term of its validity is not defined in the license agreement, the agreement is considered concluded for five years, unless the Civil Code provides otherwise. In case of termination of the exclusive right, the license agreement is terminated.

Under a license agreement, the licensee undertakes to pay the licensor the remuneration stipulated by the agreement, unless the agreement provides otherwise. In the absence of a condition on the amount of remuneration or the procedure for determining it in the compensated license agreement, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, as well as in relation to the contract on the alienation of the exclusive right, do not apply.

As essential conditions, the license agreement should provide for:

1) the subject of the contract by indicating the result of intellectual activity or the means of individualization, the right to use which is granted under the contract, indicating, in appropriate cases, the number and date of issue of the document certifying the exclusive right to such result or to such means (patent, certificate);

2) ways of using the result of intellectual activity or means of individualization.

The transfer of the exclusive right to the result of intellectual activity or to a means of individualization to a new right holder is not a basis for changing or terminating the license agreement concluded by the previous right holder.

In Art. 1236 of the Civil Code specifies the types of license agreements. The license agreement may provide for:

▪ granting the licensee the right to use the result of intellectual activity or a means of individualization, while preserving the licensor’s right to issue licenses to other persons (simple (non-exclusive) license);

▪ granting the licensee the right to use the result of intellectual activity or a means of individualization without reserving the licensor’s right to issue licenses to other persons (exclusive license).

Unless otherwise provided by the license agreement, the license is assumed to be simple (non-exclusive).

One license agreement regarding various ways of using the result of intellectual activity or means of individualization may contain the above conditions provided for license agreements of different types.

The procedure for the execution of a license agreement is defined in Art. 1237 GK. According to this article, the licensee is obliged to submit to the licensor reports on the use of the result of intellectual activity or means of individualization, unless otherwise provided by the license agreement. During the term of the license agreement, the licensor is obliged to refrain from any actions that could hinder the exercise by the licensee of the right granted to him to use the result of intellectual activity or means of individualization within the limits established by the agreement.

With the written consent of the licensor, the licensee may, under an agreement, grant the right to use the result of intellectual activity or means of individualization to another person (sublicense agreement). Under a sublicense agreement, a sublicensee may be granted the rights to use the result of intellectual activity or means of individualization only within the limits of those rights and those methods of use that are provided for by the license agreement for the licensee. A sublicense agreement concluded for a period exceeding the validity period of the license agreement is considered concluded for the duration of the license agreement. The licensee shall be liable to the licensor for the actions of the sublicensee, unless otherwise provided by the license agreement. According to Art. 1238 of the Civil Code, the rules of the Civil Code on a license agreement apply to a sublicense agreement.

In the cases provided for by the Civil Code, the court may, in accordance with Art. 1239 of this Code, at the request of an interested person, decide to grant this person, on the conditions specified in the court decision, the right to use the result of intellectual activity, the exclusive right to which belongs to another person (compulsory license).

In the process of creativity, a complex object can be created that includes several protected results of intellectual activity (a film, other audiovisual work, a theatrical and entertainment performance, a multimedia product, a single technology). In accordance with Art. 1240 of the Civil Code, the person who organized the creation of such an object acquires the right to use the indicated results on the basis of agreements on the alienation of the exclusive right or license agreements concluded by such a person with the holders of exclusive rights to the corresponding results of intellectual activity.

In the event that this person acquires the right to use the result of intellectual activity specially created or being created for inclusion in such a complex object, the corresponding agreement is considered an agreement on the alienation of the exclusive right, unless otherwise provided by agreement of the parties (clause 1 of article 1240 of the Civil Code). When using the result of intellectual activity as part of a complex object, the author of such a result retains the right of authorship and other personal non-property rights to such a result (paragraph 3 of article 1240 of the Civil Code). When using the result of intellectual activity as part of a complex object, the person who organized the creation of this object has the right to indicate his name or name or require such an indication (clause 4 of article 1240 of the Civil Code). The same rules apply to the right to use the results of intellectual activity as part of a single technology created at the expense or with the involvement of federal budget funds, unless otherwise established by the rules of Ch. 77 of the Civil Code, dedicated to this right (clause 5 of article 1240 of the Civil Code).

In accordance with Art. 1241 of the Civil Code, the transfer of an exclusive right to the result of intellectual activity or to a means of individualization to another person without concluding an agreement with the copyright holder is allowed in cases and on the grounds established by law, including in the order of universal succession (inheritance, reorganization of a legal entity) and in the event of foreclosure on the property of the copyright holder.

According to Art. 1242 of the Civil Code, authors, performers, producers of phonograms and other holders of copyright and related rights, in cases where the exercise of their rights on an individual basis is difficult or when the Civil Code allows the use of objects of copyright and related rights without the consent of the owners of the relevant rights, but with the payment of remuneration to them, may create membership-based non-profit organizations that, in accordance with the powers granted to them by the right holders, are entrusted with the management of the relevant rights on a collective basis (collective rights management organizations). The creation of such organizations does not prevent the representation of owners of copyright and related rights by other legal entities and citizens (paragraph 1 of article 1242 of the Civil Code).

Collective rights management organizations may be created to manage rights relating to one or more types of copyright and related rights, to manage one or more types of such rights in respect of certain uses of the relevant objects, or to manage any copyright and (or) related rights. rights (clause 2 of article 1242 of the Civil Code).

The basis for the powers of an organization to manage rights on a collective basis is an agreement on the transfer of powers to manage rights, concluded by such an organization with the right holder in writing, with the exception of the case provided for in par. 1 p. 3 art. 1244 GK. The specified agreement can be concluded with right holders who are members of such an organization, and with right holders who are not members of such an organization. At the same time, the rights management organization on a collective basis is obliged to assume the management of these rights, if the management of such a category of rights relates to the statutory activities of this organization. The basis for the authority of an organization to manage rights on a collective basis may also be an agreement with another organization, including a foreign one, that manages rights on a collective basis.

Rights management organizations on a collective basis are not entitled to use objects of copyright and related rights, the exclusive rights to which are transferred to their management (clause 4 of article 1242 of the Civil Code). These organizations have the right, on behalf of the right holders or on their own behalf, to bring claims in court, as well as to take other legal actions necessary to protect the rights transferred to them for management on a collective basis. An accredited organization also has the right to present claims in court necessary to protect the rights managed by such an organization on behalf of an indefinite circle of copyright holders (clause 5 of article 1244 of the Civil Code).

The possibility of obtaining state accreditation by a rights management organization on a collective basis is provided for by Art. 1244 GK. Such accreditation may be obtained for activities in the areas of collective management defined in this article. State accreditation is carried out on the basis of the principles of openness of the procedure and taking into account the opinions of interested parties, including right holders, in the manner determined by the Government of the Russian Federation. State accreditation to carry out activities in each of these areas of collective management can be obtained by only one organization for the management of rights on a collective basis.

An organization managing rights on a collective basis may obtain state accreditation to carry out activities in one, two or more areas of collective management from among the areas defined in the law. An organization for the management of rights on a collective basis that has received state accreditation (an accredited organization) has the right, along with the management of the rights of those right holders with whom it has concluded agreements in the manner provided for in paragraph 3 of Art. 1242 of the Civil Code, to manage the rights and collect remuneration for those copyright holders with whom she has not concluded such agreements (paragraph 1, clause 3, article 1244 of the Civil Code). The presence of an accredited organization does not prevent the creation of other organizations for the management of rights on a collective basis, including in the areas of collective management indicated above. Such organizations have the right to conclude agreements with users only in the interests of copyright holders who have granted them the authority to manage rights in the manner provided for in paragraph 3 of Art. 1242 GK.

Accredited organizations carry out their activities under the control of the authorized federal executive body. At present, this is the Federal Service for Intellectual Property, Patents and Trademarks (Rospatent), which is under the jurisdiction of the Ministry of Education and Science of the Russian Federation (hereinafter referred to as the Ministry of Education and Science of Russia). Accredited organizations are required to annually submit a report on their activities to the authorized federal executive body, as well as publish it in the all-Russian mass media. The form of the report is established by the said body. The model charter of an accredited organization is approved in the manner determined by the Government of the Russian Federation.

The Civil Code specifically regulates the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes. According to Art. 1245 of the Civil Code, authors, performers, producers of phonograms and audiovisual works have the right to remuneration for the free reproduction of phonograms and audiovisual works exclusively for personal purposes. Such remuneration is of a compensatory nature and is paid to right holders at the expense of funds that are payable by manufacturers and importers of equipment and material media used for such reproduction. The list of equipment and material carriers, as well as the amount and procedure for collecting the relevant funds, are approved by the Government of the Russian Federation. The collection of funds for the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes is carried out by an accredited organization (Article 1244 of the Civil Code).

The remuneration for the free reproduction of phonograms and audiovisual works for personal purposes is distributed among the right holders in the following proportion:

▪ 40% - to the authors;

▪ 30% - to performers;

▪ 30% - to producers of phonograms or audiovisual works.

The distribution of remuneration between specific authors, performers, producers of phonograms or audiovisual works is carried out in proportion to the actual use of the respective phonograms or audiovisual works. The procedure for the distribution of remuneration and its payment is established by the Government of the Russian Federation.

General provisions on state regulation of relations in the field of intellectual property are contained in Art. 1246 GK. In accordance with this article, in the cases provided for by the Civil Code, the publication of normative legal acts for the purpose of regulating relations in the field of intellectual property related to objects of copyright and related rights is carried out by the authorized federal executive body that exercises legal regulation in the field of copyright and related rights. rights (currently - the Ministry of Education and Science of Russia). The same body carries out, in the cases provided for by the Civil Code, the publication of regulatory legal acts in order to regulate relations in the field of intellectual property related (paragraph 2 of article 1246 of the Civil Code):

▪ with inventions;

▪ utility models;

▪ industrial designs;

▪ computer programs;

▪ databases;

▪ topologies of integrated circuits;

▪ trademarks and service marks;

▪ appellations of origin of goods.

Legally significant actions for the state registration of data on the results of intellectual activity and means of individualization, including the acceptance and examination of relevant applications, for the issuance of patents and certificates certifying the exclusive right of their holders to such results and to such means, and in cases provided for by law, and other actions related to the legal protection of the results of intellectual activity and means of individualization, is carried out by the federal executive body for intellectual property (currently - Rospatent). In the cases provided for by Art. 1401 - 1405 of the Civil Code, these actions can also be carried out by federal executive bodies authorized by the Government of the Russian Federation (clause 3 of article 1246 of the Civil Code).

With regard to breeding achievements, the functions specified in paragraphs 2 and 3 of Art. 1246 of the Civil Code are carried out respectively by the authorized federal executive body responsible for legal regulation in the field of agriculture - the Ministry of Agriculture of the Russian Federation (Ministry of Agriculture of Russia) and the federal executive body for breeding achievements. At present, this is the Federal Agency for Agriculture (Rosselkhoz), which is under the jurisdiction of the Ministry of Agriculture of Russia.

According to Art. 1247 of the Civil Code, dealing with the federal executive authority on intellectual property may be carried out by the applicant, right holder, other interested person independently, or through a patent attorney registered with the specified federal authority, or through another representative.

Citizens permanently residing outside the territory of the Russian Federation and foreign legal entities conduct business with the federal executive authority for intellectual property through patent attorneys registered with the said federal authority, unless otherwise provided by an international treaty of the Russian Federation. The powers of a patent attorney or other representative are certified by a power of attorney issued by the applicant, right holder or other interested person. A citizen of the Russian Federation permanently residing in its territory may be registered as a patent attorney. Other requirements for a patent attorney, the procedure for his attestation and registration, as well as his powers in relation to conducting cases related to the legal protection of the results of intellectual activity and means of individualization, are established by law.

The main provisions concerning the procedure for considering disputes related to the protection of intellectual property rights are contained in Art. 1248 GK. Paragraph 1 of this article states that disputes related to the protection of violated or disputed intellectual rights are considered and resolved by the court (paragraph 1 of article 11 of the Civil Code). In the cases provided for by the Civil Code, the protection of intellectual property rights is carried out administratively by authorized bodies. Decisions of these bodies come into force from the date of adoption. They can be challenged in court in the manner prescribed by law (paragraph 2 of article 1248 of the Civil Code).

For the performance of legally significant actions related to a patent for an invention, utility model, industrial design or selection achievement, with state registration of a computer program, database, topology of an integrated circuit, trademark and service mark, with state registration and granting the exclusive right to the name place of origin of the goods, as well as with state registration of the transfer of exclusive rights to other persons and agreements on the disposal of these rights, patent and other fees are levied, respectively (clause 1 of article 1249 of the Civil Code).

A list of legally significant actions that are associated with a computer program, a database and an integrated circuit topology and for which state fees are levied, their amounts, procedure and terms of payment, as well as grounds for exemption from paying state fees, reducing their amounts, deferring payment or refund are established by the legislation of the Russian Federation on taxes and fees. Currently, there is a Regulation on fees for patenting inventions, utility models, industrial designs, registration of trademarks, service marks, appellations of origin of goods, granting the right to use appellations of origin of goods, approved by Resolution of the Council of Ministers - the Government of the Russian Federation dated August 12.08.1993, 793 No. 26.11.2004 (as amended on November XNUMX, XNUMX). For the performance of legally significant actions related to the official registration of computer programs, databases and topologies of integrated circuits, a state fee is paid in accordance with the legislation of the Russian Federation on taxes and fees.

General provisions relating to the protection of intellectual property rights in general are enshrined in Art. 1250 GK. In accordance with this article, intellectual property rights are protected by the methods provided for by the Civil Code, taking into account the essence of the violated right and the consequences of violating this right. The methods of protection of intellectual property provided for by the Civil Code can be applied at the request of copyright holders, organizations managing rights on a collective basis, as well as other persons in cases established by law.

The lack of guilt of the infringer does not relieve him of the obligation to stop the violation of intellectual property rights, and also does not exclude the application of measures against the infringer aimed at protecting such rights. In particular, the publication of a court decision on the committed violation (subclause 5, clause 1, article 1252 of the Civil Code) and the suppression of actions that violate the exclusive right to the result of intellectual activity or to a means of individualization or create a threat of violation of such a right, are carried out regardless of the fault of the violator and for his account.

The protection of the personal non-property rights of authors is separately regulated by Art. 1251 GK. According to this article, in case of violation of the author's personal non-property rights, their protection is carried out, in particular, by recognizing the right, restoring the situation that existed before the violation of the right, suppressing actions that violate the right or threaten to violate it, compensate for moral damage, publish a court decision on the violation . Protection of honor, dignity and business reputation of the author is carried out in accordance with the rules of Art. 152 CC.

The basic rules relating to the protection of exclusive rights are set out in Art. 1252 GK. In accordance with paragraph 1 of this article, the protection of exclusive rights to the results of intellectual activity and to means of individualization is carried out, in particular, by presenting a claim for recognition of the right; on the suppression of actions that violate the right or create a threat of its violation; for damages; on the seizure of a material carrier, mainly used or intended to infringe exclusive rights to the results of intellectual activity or to means of individualization; on the publication of a court decision on the violation committed, indicating the actual copyright holder.

In order to secure a claim in cases of infringement of exclusive rights to material media, equipment and materials in respect of which an assumption has been made of infringement of the exclusive right to the result of intellectual activity or to a means of individualization, interim measures may be taken, established by procedural legislation, including be seized on material carriers, equipment and materials.

In the cases provided for by the Civil Code for certain types of results of intellectual activity or means of individualization, in case of violation of an exclusive right, the right holder has the right, instead of compensation for losses, to demand compensation from the violator for violation of this right. Compensation is subject to recovery when the fact of the offense is proven. At the same time, the right holder who applied for the protection of the right is exempted from proving the amount of losses caused to him. The amount of compensation is determined by the court within the limits established by the Civil Code, depending on the nature of the violation and other circumstances of the case, taking into account the requirements of reasonableness and fairness. The right holder has the right to demand compensation from the infringer for each case of misuse of the result of intellectual activity or means of individualization, or for the committed offense in general.

In the event that the manufacture, distribution or other use, as well as the import, transportation or storage of material media in which the result of intellectual activity or a means of individualization is expressed, leads to a violation of the exclusive right to such a result or to such a means, such material media are considered counterfeit and by court decision, they are subject to withdrawal from circulation and destruction without any compensation, unless other consequences are provided for by the Civil Code. Equipment, other devices and materials, mainly used or intended to infringe exclusive rights to the results of intellectual activity and means of individualization, by a court decision, are subject to withdrawal from circulation and destruction at the expense of the infringer, unless the law provides for their circulation to the income of the Russian Federation ( paragraph 5 of article 1252 of the Civil Code).

If various means of individualization (company name, trademark, service mark, commercial designation) turn out to be identical or confusingly similar and as a result of such identity or similarity consumers and (or) counterparties may be misled, the means of individualization, the exclusive right which arose earlier. The owner of such an exclusive right may, in accordance with the procedure established by the Civil Code, demand that the granting of legal protection to a trademark (service mark) or a complete or partial prohibition on the use of a company name or commercial designation be declared invalid. In this case, a partial ban on use means:

▪ in relation to a company name - a ban on its use in certain types of activities;

▪ in relation to a commercial designation - a ban on its use within a certain territory and (or) in certain types of activities (clause 6 of Article 1252 of the Civil Code).

In cases where the violation of the exclusive right to the result of an intellectual activity or to a means of individualization is recognized in accordance with the established procedure as unfair competition, the protection of the violated exclusive right can be carried out both by the methods provided for by the Civil Code and in accordance with the antimonopoly legislation.

In accordance with Art. 1253 of the Civil Code, if a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court may, in accordance with paragraph 2 of Art. 61 of the Civil Code to decide on the liquidation of such a legal entity at the request of the prosecutor. If such violations are committed by a citizen, his activities as an individual entrepreneur may be terminated by a court decision or sentence in the manner prescribed by law.

Author: Ivakin V.N.

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Summer is a time for relaxation and travel, but often the heat can turn this time into an unbearable torment. Meet a new product from Sony - the Reon Pocket 5 mini-air conditioner, which promises to make summer more comfortable for its users. Sony has introduced a unique device - the Reon Pocket 5 mini-conditioner, which provides body cooling on hot days. With it, users can enjoy coolness anytime, anywhere by simply wearing it around their neck. This mini air conditioner is equipped with automatic adjustment of operating modes, as well as temperature and humidity sensors. Thanks to innovative technologies, Reon Pocket 5 adjusts its operation depending on the user's activity and environmental conditions. Users can easily adjust the temperature using a dedicated mobile app connected via Bluetooth. Additionally, specially designed T-shirts and shorts are available for convenience, to which a mini air conditioner can be attached. The device can oh ... >>

Energy from space for Starship 08.05.2024

Producing solar energy in space is becoming more feasible with the advent of new technologies and the development of space programs. The head of the startup Virtus Solis shared his vision of using SpaceX's Starship to create orbital power plants capable of powering the Earth. Startup Virtus Solis has unveiled an ambitious project to create orbital power plants using SpaceX's Starship. This idea could significantly change the field of solar energy production, making it more accessible and cheaper. The core of the startup's plan is to reduce the cost of launching satellites into space using Starship. This technological breakthrough is expected to make solar energy production in space more competitive with traditional energy sources. Virtual Solis plans to build large photovoltaic panels in orbit, using Starship to deliver the necessary equipment. However, one of the key challenges ... >>

Random news from the Archive Samsung Galaxy S III display better than Apple iPhone 5 display 15.10.2012 The source claims that the display of the Samsung Galaxy S III smartphone is superior in some respects to the display of the Apple iPhone 5 smartphone. In particular, the use of in-cell touch technology made it possible to reduce the thickness of the iPhone 5 display, but in this parameter it still lags behind the Galaxy S III display. The iPhone 5's display thickness is 1,5mm, which is 0,6mm thinner than the iPhone 4S's 2,1mm display. The thickness of the display of the flagship smartphone Samsung is 1,1 mm. The color gamut in the case of the iPhone 4S is 50% of the NTSC space. In the iPhone 5 model, the coverage was brought up to 72% of the NTSC space. Galaxy S III display covers 100% of NTSC space. The source is quick to point out that the smaller screen thickness does not always correspond to the smaller thickness of the entire device as a whole. For example, in the case of Samsung Galaxy S III and Apple iPhone 5, the situation is reversed. The thickness of the Apple iPhone 5 is 7,6 mm, Samsung Galaxy III - 8,6 mm. If we talk about color gamut, then it is not the only technical parameter that determines the perception of the image. On the one hand, coverage of 72% of the NTSC space satisfies the needs of most users. On the other hand, due to better calibration, more realistic colors can be obtained, and the use of in-cell touch technology helped to increase the brightness of the screen. In addition, the results of our own measurements allowed us to conclude that "compared to the iPhone 4S, the new version of the smartphone has a wider color gamut and is almost equal to sRGB, as well as a higher efficiency of the anti-glare filter." The Galaxy III uses an OLED screen, while the iPhone 5 uses an LCD screen.

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