News Highlights: IP&IT Novelties In Russia Of 2019

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THE GEOGRAPHICAL INDICATIONS AS THE NEW INTELLECTUAL PROPERTY ITEM

According to the Federal Law “On the Introduction of Amendments to Part Four of the Civil code of the Russian Federation” that shall come into force on the 27th of June 2020, a new civil law institute – the geographical indication is appearing in the Civil Code of the Russian Federation (herein after – the Civil Code).

Chapter 76 of the Civil Code has already set the similar civil law institute in the matter of an identification of a product by the criteria of its originating that is established as an appellation of origin. However for a long time of its existence, an appellation of origin has not set a widespread practice of its application. Such lack of registration practice is due mainly to a presence of the great number of strict requirements for an appellation of origin registration. All these requirements state the necessity of a strong link with the place of origin existence. The quality or characteristics of a product protected as an appellation of origin must result exclusively or essentially from its geographical origin. So that nowadays there are about 200 registered appellations of origin at all. By comparison, there are about 744 100 trademarks registered in Russia (excluding ones registered under the Madrid System).

The Civil Code has been amended due to the fact that the Russian Federation became a member of the World Trade Organization (WTO) since 2012, and as a member undertook all commitments established by the WTO law. One of these commitments is to bring the internal law system to conformity with the WTO multilateral agreements as well as with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) that deals with the protection of geographical indications and stipulates to determinate a legal protection of geographical indications in its members’ legislation.

Therefore the Federal Law “On the Introduction of Amendments to Part Four of the Civil code of the Russian Federation” offers a mechanism for improving legislation in the matter of the geographical indication that is related to product’s geographical origin and a quality or characteristic of the product linked to its place of origin.

A geographical indication’s owners will be able to use similar instruments of protection that are available for a trademark’s rightholders. In particular they will be able to restrict any further use of the geographical indication or to claim for a statutory compensation.

ADOPTION OF THE NEW RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

Resolution of the Plenum of the Supreme Court of the Russian Federation “On application by courts of the Russian Federation of Part Four of the Civil Code of the Russian Federation” (hereinafter – the Resolution) was adopted on the 23rd of April 2019.

The “Resolution” of the Plenum is an important document widely used in Russian court practice. It contains recommendations and interpretations of dispositions of the legal acts prepared by the senior judicial authority. In practice, lower courts cannot neglect such document in dispute settlement.

The main purposes of the Resolution are alignment and harmonization of court practice concerning the intellectual property cases. The previous Resolution of the Plenum of the Supreme Court of the Russian Federation on the same matters had been applying for 10 years and required lots of modifications.

The Resolution contains about 200 provisions and covers approximately all articles of the Part Four of the Civil Code of the Russian Federation, which regulates intellectual property law. The small part of the key statements of the Resolution is presented below:

  • If оne intellectual property object is used by different means and all of these means are covered by a single economic aim, all these actions will contain the sole violation of the intellectual property rights. This provision displays that court practice in the sphere of intellectual property regarding the calculation of the statutory compensation has been changed from the previous approach (one action or intellectual property item was equal to one violation) by which the compensation could be multiplied a few times even for an insignificant infringement.
  • Bankruptcy of the trademark owner is not an appropriate reason of the trademark non-use (consequently, a previous cessation of the trademark due to its non-use is possible).
  • The use of key words that at least confusingly similar to the registered trademarks in search or contextual advertising on the pages of websites can not constitute an infringement of trademark owner’s rights, however such use can be recognized as an unfair competition.
  • In case of impossibility of providing evidence, the claimant has the right to petition against the defendant for ordering the disclosure of evidence (what previously was impossible due to local procedural rules and negative court practice on the matter).

To sum up, the new Resolution can be fully considered as a necessary tool for courts on the protection and enforcement of intellectual property.

NOVELTIES IN THE SPHERE OF INFORMATION TECHNOLOGIES

DIGITAL RIGHTS AS THE NEW INSTITUTE IN THE CIVIL LEGISLATION OF RUSSIA

According to the Federal Law “On the Introduction of Amendments to Part One, Two and article 1124 of Part Three of the Civil code of the Russian Federation” that came into force on the 1st of October 2019 (hereinafter – the Federal Law), a new civil law Institute of digital rights appeared in the Civil Code.

The Federal Law contains a definition of digital rights in the article 141.1 that is identical to the definition of token, because it could be any right, the content and conditions for the implementation of which are determined in accordance with the rules of the information system.

In addition, the Federal Law establishes a number of new requirements in the sphere of the civil law, for example regarding form, content and other conditions of execution of agreements.

HEFTY FINES FOR NON-LOCALIZATION OF PERSONAL DATA OF RUSSIAN CITIZENS

On the 2nd of December, 2019 the President of the Russian Federation signed Federal Law No. 405-FZ, “On the Introduction of Amendments to the Administrative Offenses Code of the Russian Federation” that forced into application new constituent element of an administrative offense – breach of localization requirements.

According to provisions of the Federal Law “On Personal Data” operators shall ensure the recording, systematization, accumulation, storage, adjustment (update, alteration), and retrieval of personal data of citizens of the Russian Federation through database servers that are located in the territory of the Russian Federation.

Amendments to the Administrative Offenses Code of the Russian Federation establish that an operator failure to comply with the requirement leads to imposition of fine:

  • for officials – up to RUB 200,000 (approximately USD 3,175)
  • for legal entities – up to RUB 6,000,000 (approximately USD 95,240)

An amount of fine for the repeated violation:

  • for officials – up to RUB 800,000 (approximately USD 12,700)
  • for legal entities – up to RUB 18,000,000 (approximately USD 285,715)

MANDATORY PREINSTALLATION OF RUSSIAN SOFTWARE

On the 2nd of December, 2019 Vladimir Putin also signed the Federal Law No. 425-FZ, “On the Introduction of Amendments to the Consumer Right Protection Law of the Russian Federation” (hereinafter – the Federal Law).

The Federal Law provides that when selling certain kinds of technically sophisticated goods, consumers should be provided with an opportunity for using such goods with preinstalled Russian software.

The Federal Law established an opportunity for the Russian government to determine the list of technically sophisticated goods and the procedure of compiling and maintaining the list of Russian software to be preinstalled on such goods, along with their pre-installation procedure.

“Technically sophisticated goods”, which may be affected by new amendments, include smartphones, computers and Smart TV.

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