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Protection
Of The Intellectual Property in Russia
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by:
Sergey Talpa
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A
Governmental commission, headed personally by the Prime Minister has
been created in Russia recently in order to counteract the
infringements in the sphere of intellectual property. As he stated
earlier, little is done for the protection of intellectual property
rights in Russia and, therefore, both the rights owners and the state
are actually robed. Are there any changes today in this area? What
contribution has customs service made in order to protect business
intellectual property rights? How can the consumers be sure that when
buying medicines, products or clothes of known manufacturers they will
get the goods that they expect?
It is certain that the problem has not been solved instantly. Today
Russia suffers severe economic damage caused by the infringements of
the author's and adjoining rights, misuses of inventions, trade marks,
from uncollected tax revenues, and from the impossibility to increase
national economic production of goods because of unfair competition.
Counterfeit aviation and automobile spare parts, fake
combustive-lubricating materials, toys, medical equipment and
pharmaceuticals, food are frequently dangerous to health and life of
the population, and pose real threat to national safety of this country.
Starting Point
A legal base of interaction between customs bodies with other
law-enforcement and control organs has been created in Russia;
Rospatent, a State body which acts as federal enforcement authority in
the field of intellectual property protection is now a part of the
team.
Joint actions are carried out according to the guidelines of
interdepartmental recommendations and measures, aimed at ensuring
intellectual property protection, that have been developed and approved
by the Ministry of Internal Affairs, by the State Customs Committee,
and by Federal Tax Police Service and coordinated with the State Office
of the Public Prosecutor of Russia.
Multiple changes and modifications to the legislation, regulating
intellectual property protection have been adopted. They helped define
customs and state regulations of the foreign trade activity,
administrative infringements, and the criminal legislation.
Suspicion of Illegal Trafficking
The legitimate rights owner who has reasonable grounds to believe that
his intellectual property rights could be infringed during customs
clearance through the border of Russia can file a complaint with the
State Customs Committee (SCC) of Russia and request the protection of
his rights. The efficiency of this protection directly depends on the
completeness of the information submitted by the legal owner who can
assist customs bodies in counterfeit products identification. Such data
can include information on the places of import and customs
registration of legal production, information on exporters, importers
of legal production, on distinctive signs of counterfeit goods, etc.
After consideration of application and, if required, after additional
verification of the stated information, the documents issued by the
State Customs Committee of Russia and the corresponding information are
filed with the supervising customs bodies of Russia.
As practice shows, the infringements of the intellectual property
rights are quite often accompanied by violations of customs rules. The
examples of such are: import of a cargo, for example, claimed to be
used for non-commercial purposes, falsified documentation and customs
declarations, undeclared or falsely declared products, as well as other
infringements for which administrative responsibility is stipulated by
the law.
Enforcement Practice
On July, 1, 2002 the new Administrative Violations Code (AVC) of the
Russian Federation came into effect which stipulates administrative
responsibility for copyright infringement and illegal use of trade
marks. The procedural part of the Code states that customs bodies have
the right to file reports of the above-stated intellectual property
rights infringements discovered during customs control.
The reports, filed by customs bodies serve as a legal ground for court
judgments imposing administrative penalties and fines and/or
confiscation of the imported goods that violate copyright or other
intellectual property rights or trade marks.
The state bodies conducted the analysis of the trade mark protection
enforcement practice. The conducted study resulted in the development
of guidelines and recommendations for the customs bodies on revealing
and punishing offences connected to illegal use of trade marks. Those
guidelines define the actions and serve as the legal ground for customs
bodies actions and are based on concrete examples.
Customs bodies of foreign states control from several thousand up to
several tens of thousand of trade marks. The customs bodies of Russia,
according to the information of legal rights owners, control about 450
trade marks which are filed with the intellectual property register of
the State Customs Committee of Russia.
The next step is to develop methodical recommendations concerning the
owner’s legal and adjoining rights.
The analysis of court judgments shows that there is an urgent need to
review the current judicial practice and submit it for consideration to
the Supreme Arbitration Court of the Russian Federation.
It is necessary to note, that the first enforcement practice results
have shown the necessity to update the administrative violations
legislation. In particular, it is required to add to the Code the
regulations on conducting investigations with the purpose of their
qualitative pre-trial study and add legal permission to conduct the
necessary examinations.
It would be expedient to increase the impeachment timeframe, as law
breakers, in some cases, delay proceedings by every possible means, and
go unpunished because of the impossibility to impeach them just two
months after the date of the offence.
The "Greys" Consolidate
A tendency disturbing enough surfaced recently and is connected to
"grey" importers joining efforts to counteract the measures adopted by
the State Customs Committee of Russia and by customs bodies. The given
counteraction is carried out as in the legal field (disputing in due
order the requirements of normative legal acts, appealing the actions
of customs bodies and their officials), as with the use of financial
and administrative resources.
The New Code – The New Opportunities
Starting January, 1, 2004, when a shipment of products is suspected to
be counterfeit, the customs bodies are given the right to detain the
goods or delay the release of the goods containing objects of
intellectual property for up to 20 days, and to inform the legal owner
as well as a number of other rights.
The turn-over of the counterfeit goods will considerably decline in
case of the intellectual property legislation control at all stages of
the foreign economic transaction, starting with the signing of the
contract and followed by customs registration.
Copyright 2005 OpenRussia.ru
Russian
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