SIP court for intellectual rights. Intellectual rights court – what is it and how does it work? When to contact specialists

In the 80s of the last century, almost no questions arose about the monetary valuation of intellectual property, since its owner was the state. However, over the past decades, attitudes towards it have often changed. In the 90s, during socio-economic transformations, views on this type of property changed, which led to consideration of the concept of creating a court for intellectual rights. Despite this, the law “On the USSR Patent Court” was never adopted for a number of reasons.

After this, attempts were made repeatedly to introduce a special court in the Russian Federation. At some point, it was decided to transfer disputes on the protection of intellectual property to the Supreme Patent Chamber, and subsequently part of its powers were transferred to the structures of Rospatent. An independent independent body - the Intellectual Rights Court - was created quite recently on the basis of Federal Constitutional Law No. 4-FKZ of December 6, 2011. However, this government body began its work only in 2013.

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Markanov Dmitry Yurievich- Managing partner. Patent attorney of the Russian Federation reg. No. 1567

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Competence of the court

The court considers disputes in the field of intellectual property as a court of both first and cassation instances. In its practice, SIP often faces the need to fill gaps in Russian legislation.

According to Article 43.4 No. 4-FKZ “On Arbitration Courts in the Russian Federation,” the court considers:

1. As a court of first instance:
- cases of challenging regulatory legal acts of federal executive authorities affecting the rights and legitimate interests of the applicant in the field of legal protection of results of intellectual activity and means of individualization, including in the field of patent rights and rights to selection achievements, rights to topologies of integrated circuits, rights to production secrets (know-how), rights to means of individualization of legal entities, goods, works, services and enterprises, rights to use the results of intellectual activity as part of a single technology;
- cases on disputes regarding the provision or termination of legal protection of the results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises (with the exception of objects of copyright and related rights, topologies of integrated circuits).

2. As a court of cassation:
- cases considered by him at first instance;
- cases on the protection of intellectual rights considered by arbitration courts of constituent entities of the Russian Federation at first instance, and arbitration courts of appeal.

More details about the competence of the court can be found in the text of the said Federal Constitutional Law.

Features of work

To study a number of issues that arise during the consideration of certain cases, a group of qualified advisers is formed in the court apparatus. It is also not uncommon for a specialist to be involved in the arbitration process, providing independent assistance to judges in examining certain circumstances of the case.

The court decision comes into force immediately after its adoption. It can be appealed by the losing party to the presidium of the court within 2 months after its delivery. The decision of the cassation court can be appealed to the supervisory authorities.

Principles of our work

Patentus specialists have many years of experience and knowledge necessary to represent the interests of the company’s clients in a specialized court on intellectual property rights. Even before the appearance of the court, we successfully defended the rights of our clients to their intellectual property in other bodies, including in extremely complex and controversial disputes.

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Experts in dispute resolution practice

Why us?

1) PATENTUS is the leader in the Russian Federation in the number of disputes in the field of intellectual property considered with the assistance of our lawyers and patent attorneys in the Intellectual Property Rights Court and the Chamber of Patent Disputes.

3) The head of the litigation practice of PATENTUS is recommended in the rating of Kommersant Publishing House (2017) as a leading intellectual property lawyer in Russia.

4) Among our clients there are companies that are included in the FORTUNE 500 list.

5) The professional liability of our specialists is insured for the amount of 5,000,000 rubles.

How protection of intellectual property rights is carried out in practice

1. Study of documents
The lawyer carefully studies the documents existing in the case. Based on the results of the analysis, prospects are determined and the cost of legal services is announced.

2. Definition of strategy
An action plan is being developed. Collection of evidence. Preparation and submission of necessary applications.

3. Pre-trial work
Carrying out work with claims and objections of the parties. Representation in the Chamber of Patent Disputes is provided if necessary.

4. Representation in court
If pre-trial measures do not resolve the intellectual property dispute, the lawyer prepares a statement of claim to the court and represents your interests at court hearings.

Federal Constitutional Law of April 28, 1995 No. 1-FKZ “On Arbitration Courts in the Russian Federation”, Chapter IV.1. “Powers, procedure for the formation and activities of the Intellectual Rights Court”

3. The intellectual property rights court, as a cassation court, considers:
- cases considered by him at first instance;
- cases on the protection of intellectual rights considered by arbitration courts of constituent entities of the Russian Federation at first instance, and arbitration courts of appeal.

4. The court for intellectual property rights reviews, based on new and newly discovered circumstances, judicial acts adopted by it and which have entered into legal force.

Intellectual Property Court

Owners of sought-after trademarks often have their own copyright lawyer who provides careful oversight.

At the moment, cases on disputes related to the protection of intellectual rights are considered by the Court of Intellectual Rights (CIP), which is a court of first and cassation instance.

It must be said that this is the first specialized arbitration court in our country. At the same time, similar courts have long been active in other countries; examples of this are the Federal Patent Court in Germany, the Intellectual Property Court in Japan, etc.

The idea of ​​​​creating a special patent court was the subject of active discussion among lawyers and legislators back in the 80s and 90s of the 20th century, but it received real implementation only in our days. Issues of competent consideration of cases related to the protection of intellectual property, which consider the illegal use of a trademark, are extremely relevant for the Russian legal system. Consideration of such disputes requires special knowledge and consideration of the characteristics of the objects of intellectual rights subject to protection. One should not ignore the fact that in such instances every intellectual property lawyer is an excellent specialist and will provide the appropriate level of advice and assistance. The creation of a specialized court is intended to improve the professional level and quality of consideration of disputes related to intellectual property. It is worth noting that the number of such disputes is constantly growing.

One of the reasons underlying the creation of the SIP is, among other things, the lack of uniform judicial practice in the application of legislation regulating intellectual property issues, in particular, problems associated with the illegal use of a torah sign.

Customs register of intellectual property objects

The register of intellectual property objects is an important tool of customs control to protect the rights of copyright holders. The basis for including an object in the customs register is the application of the copyright holder. According to statistics from customs authorities, the most common objects of counterfeiting are clothing, shoes, confectionery and food products, as well as perfumes and cosmetics. Most often, products marked with well-known trademarks (for example, Adidas, etc.) are counterfeited.

By entering information about trademarks into this register, the copyright holder will thereby create the opportunity to suppress the illegal import of pirated products into the country. It should be borne in mind that the customs register may include information not only about trademarks, but also about names of places of origin of goods, as well as objects of copyright and related rights.

Thus, entering information into the customs register is an additional, but no less important way of protecting the exclusive rights of copyright holders.

What types of cases does the intellectual property rights court hear? What is special about the decisions of this court? What is needed to defend interests and rights? At what stage is it desirable to involve a specialist?

The modern world is filled with innovations and works that are protected by law as intellectual property. However, such protection is not an independent guarantee of inviolability for your inventions, trademarks, or artistic works. Moreover, sometimes they try to use the principles of IP protection in bad faith as part of competition and pressure.

In such cases, it may be necessary not only to protect your property, but also to challenge someone else’s registration of trademarks, patents, regulations adopted by the executive branch, and decisions of antimonopoly authorities. In such matters, you will inevitably have to apply to the Arbitration Court for Intellectual Rights, know the specifics of similar cases, and have practical experience in resolving them.

What does an intellectual property rights court do?

The Court for Intellectual Rights of the Russian Federation (Patent Court of the Russian Federation, CIP) is a centralized and fairly new body in the court system. Back in the 80s and 90s, the need for a special body that would deal with qualified consideration of cases on issues of intellectual rights was actively discussed. In fact, within the existing system, even the practice of conducting examinations could not significantly affect the quality of consideration of cases and compliance with international standards.

The result of this discussion was FKZ-4, which laid the legal foundations of the new court, but it began its actual work in 2013. This body is designed to unite a panel of judges specializing in intellectual law for a more professional consideration and resolution of disputes. The location of the court for intellectual rights is Moscow 127254, Ogorodny pr., building 5.

However, not all cases involving IP objects fall within the jurisdiction of the patent court. He mainly deals with issues of challenging registrations, antimonopoly decisions and acts relating to objects of intellectual rights. A special feature of such a court is the ability to “intercept” cases that were initially under the jurisdiction of another body if they contain a clause that is within the competence of the IP.

Let's take a closer look at which cases are within the jurisdiction of the patent court:

• Patents: identifying the patent owner, challenging the FIPS refusal, invalidating the patent, challenging decisions and regulations adopted by the executive branch.
• Trademarks: early termination of comrade. mark, challenging registration, challenging decisions of antimonopoly services and authorities (including on unfair competition), regulations.
• Designation of origin (APO): challenging the provision of state protection, termination of protection, recognition of an application as withdrawn, regulatory documents of the executive branch.
• Questions and disputes regarding decisions of antimonopoly authorities and executive authorities regarding Know-How, commercial names, etc.

Note!

Another distinctive feature is that court decisions on intellectual property rights come into force immediately upon their adoption. Such a decision can also be appealed, for this it is necessary to contact the presidium within two months from the decision.

When is it necessary to contact specialists?

In most cases, the parties to the dispute may not know that their case will be heard by a court for the protection of intellectual property rights. More precisely, they are faced with problems and violations of the law, unfair competition, and attempts to register intellectual property in violation of their rights. Already at this stage, the services of a specialist may be required who can not only clearly determine which court has jurisdiction over the case, but also develop a competent line of defense.

More information about the jurisdiction of IP cases

It is important to note that a positive court decision on intellectual property rights is often the result of the painstaking work of an entire team. In some cases, it is necessary to provide expert opinions and the results of the examination; not only specialized lawyers, but also professional patent attorneys and economists can participate in the consideration of the case materials.

Experts recommend not to wait for the court hearing, but to contact specialists in advance. This will not only give you more time to study the materials, but will also allow you to prepare more thoroughly, conduct the necessary examinations, and develop an optimal strategy.

"Krivtsov and Partners": Your reliable representative

During our practice, our team has become convinced that careful preparation is the key and basis for the success of the entire business. Cases of overly diligent preparation are practically unknown in history, but there are plenty of precedents for insufficient preparation. We offer our clients comprehensive cooperation:

• We study in detail all the details and materials of the case, help to soberly assess the prospects, and jointly develop the optimal strategy. Our clients can count on a full consultation and report on actions, a fair assessment of all possibilities in the case at all stages of cooperation.
• We help you collect and prepare all the necessary materials, draw up an application to the court on intellectual property rights, and be fully prepared for the start of the trial.
• We work as a team, forming special working groups to comprehensively consider the case. We have the power not only to attract all the necessary specialists, but also to conduct the necessary examinations, document their results and expert opinions.
• We represent the position and interests of clients at any level, and take care of all negotiations, litigation and bureaucratic procedures.

Due to the “youth” of the Russian legal system, some legally protected objects still remain vulnerable to fraudsters or other unscrupulous users. Until 2011, these included, as generally accepted by experts, intellectual law. The matter was corrected by the creation of a specialized body, which is the intellectual property rights court.

The competence of the newly created instance includes consideration of primary and cassation appeals related to challenging intangible rights. This is a new matter for the Russian Federation. However, the established judicial arbitration unit, within the framework of current legislation, is obliged to study and generalize practice in order to improve working methods.

Hint: the process is initiated by a person who believes that his exclusive right has been violated. Moreover, the defendant may not even know that he has violated the law.

What is it like?

The legislation establishes that the Intellectual Rights Court (IPR) is a specialized arbitration court. That is, it exclusively considers issues related to intellectual property rights. The institute has not yet become widespread in Russia.

Subdivisions of such an arbitration authority are created in all subjects of the federation. The central authority is located in the capital. He makes decisions regarding:

• initial statements from copyright holders and tracking authorities;
• cassation appeals:
  • to your own conclusions;
  • on decisions of regional courts.

For information: the intellectual property rights court is the first experience in Russia of creating a specialized arbitration body.

The two-stage scope of responsibilities implies the creation of a rather complex structure. The law prohibits the consideration of appeals by the panel that adopted the decision on the initial appeal. Therefore, the court consists of:

• additional composition of the court;
• presidium.

There is a division of responsibilities between official positions. Thus, the court with its composition considers primary claims. Decisions on appeal applications are made in two ways:

1. In the primary version, the presidium of the court is involved. He carries out the usual cassation work.
2. Difficult situations are dealt with by colleagues of judges. This body is formed from the composition of all intellectual property rights courts operating in Russia.

Hint: a specialized court develops recommendations that are published on the official website. They are required study for specialists involved in intellectual property processes.

Difficulties in the work of the judiciary

Objectively, a specialized court has a number of difficult issues of a diverse nature. Judicial practice allows us to divide them into two large groups:

1. Subjective difficulties are associated with the lack of sufficient experience in analyzing such cases. Applicants often do not themselves understand their rights, including the lack of official recognition of ownership. Most people in Russia do not yet think about such important things.
2. Objective difficulties include the imperfection of the regulatory framework. The Civil Code simply does not include a number of necessary rules and regulations. In view of this, we have to resort to bringing questions to the board in order to jointly sort out the situation.

Hint: the Russian SpIP is based on the experience of WIPO, in which the Russian Federation has its own representation, but the functions of the world organization and the court are different.

Let's look at an illustrative example. The company decided to register a trademark. During its examination, it turned out that similar goods in similar classes already belong to another subject of legal relations - LLC. The company was unable to resolve the issue through a contractual agreement. The matter was complicated by the fact that the organizers of the LLC had long ago lost interest in the society. Some died, others left the country.

In such a situation, there is only one thing left to do - write a statement of claim to a judicial authority (or change the type of trademark). Due to the fact that the disputed symbol was not used, the head of the company decided to proceed through the court. A representative of Rospatent was involved as a third party.

The ruling of the intellectual property court, taking into account all the circumstances, as well as the experience of the world organization (WIPO), turned out to be as follows:

• satisfy the company's claim regarding the list of goods, the production of which has not been carried out by the copyright holder for more than three years;
• refuse the rest.

Thus, the company will be able to register its own right to the controversial marking and use it in production. But the former copyright holder also has the opportunity to use the property in the remaining part (for other goods). It can be transferred to another entrepreneur, for example.

Who can go to court

A statement of claim can be written by any person who believes that his right has been violated and there is a need to protect intellectual property. This is the main difficulty of the Russian modern legal field. The fact is that it is quite difficult to recognize authorship. Registration is not provided for all intellectual objects. For example, a book is simply written and published. In the case of co-authorship, controversial issues may arise.

Those who can confirm authorship should contact the court. That is, it is advisable to have a patent in hand. But even without such a document, cases are considered. Thus, a literary work is recognized as copyright based on the publication date, agreement with the publisher and other documents.

Hint: a specialized court accepts claims from any person, regardless of status.

Litigation is generally required for persons claiming income from the use of intellectual property. For example, a literary work has gained wide popularity. The book was reprinted several times. But the co-authors did not think to take care of concluding an agreement on the division of income. In such a situation, a dispute about intellectual property arises.

There are more complex situations. Intellectual property is subject to inheritance. If it was not the author who owned it, but another person (a fraudster), and transferred the right to the heirs, then the legal copyright holder will have a serious problem in defending his property.

Simpler issues involve challenging unused marks, logos and other elements. Entrepreneurs draw up documents for them. Consequently, the judge relies on papers and expert opinion. In addition, SpIP considers claims against government agencies related to violations of legislation in the field of intellectual property.

The Veterok company was refused registration of the Veterok trademark. Rospatent specialists justified their decision by the fact that a similar symbol is already the property of Varyag LLC. His sign looks like "Veteroc". Moreover, goods of the same class are subject to labeling. Rospatent based its decision on the fact that the transcription of the marks has the completely identical meaning of “breeze”.

However, the company believes that Rospatent's refusal to register is unlawful. She presented her arguments. In particular, she hired an English language specialist. The linguist explained to the court the difference in the spelling and transcription of the two marks. Based on his testimony, and also taking into account the fact that Varyag LLC stopped producing goods more than three years ago, the court overturned the decision of Rospatent.

At the beginning of July 2013, the Supreme Arbitration Court of the Russian Federation adopted Resolution No. 51 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 2, 2013. Russian society had been expecting this event for a long time. Thus, for the first time, people started talking about the creation of a court that would protect the interests of rights and patent holders back in the last decade of the last century. But then the initiatives of legislators to protect the rights of these persons were reflected in the Patent Law of the Russian Federation of September 23, 1992 No. 3517-1 and the Law of the Russian Federation of September 23, 1992 No. 3520-1 “On Commodities”. marks, service marks and appellations of origin", and the proposal to create a special court was not supported.

During the same period, as part of the judicial reform, Federal Constitutional Law No. 1-FKZ of December 31, 1996 was adopted, which includes “Specialized Federal Courts,” that is, courts whose competence includes the consideration of a strictly defined range of cases. The public's attitude towards the creation of specialized courts, including patent courts, was not unambiguous. However, as a result of almost 20 years of discussions, on October 27, 2010, bill No. 446365-5 was introduced to the State Duma on separating disputes over intellectual rights into a separate category of cases and on creating an appropriate court to consider them. The considered bill was adopted, and on December 7, 2011, the Federal Constitutional Law of December 6, 2011 No. 4-FKZ "", which provides for the creation of an Intellectual Rights Court, came into force. We can say that thereby our country has approached a new milestone, taking the path of compliance with international standards for the protection of intellectual property.

According to Art. 26 of the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "" the competence of the new court included the consideration of disputes related to the protection of intellectual rights, as a court of first and cassation instances. Having analyzed at the same time the provisions of Art. 43.4 Federal Constitutional Law of April 28, 1995 No. 1-FKZ "", two groups of disputes can be distinguished that will be considered by the Intellectual Rights Court.

Generally speaking, the first group consists primarily of disputes about challenging decisions, actions and regulatory legal acts of various government bodies (Rospatent, FAS, Ministry of Agriculture, etc.), if they relate to issues of intellectual rights. In addition, the same first group of disputes includes disputes about identifying the patent owner, about unfair competition with the unlawful use of means of individualization, about invalidating a patent, etc. That is, in a situation where a scientist or inventor is denied a patent by Rospatent, he must appeal to the Intellectual Rights Court.

All of the above cases will be considered by the Court as a first instance, that is, the Court’s task will be to fully establish all the circumstances of the case based on a comprehensive and direct examination of the evidence, with a view to subsequently making a decision. Cases will be considered exclusively collegially. I would like to note that these categories of disputes can arise from appeals from both organizations, individual entrepreneurs, and appeals from citizens.

Another category of cases within the jurisdiction of the Intellectual Rights Court consists of disputes that the Court will consider as a cassation instance - that is, make decisions on complaints against acts of lower courts. These disputes no longer include individual cases, but all cases on the protection of intellectual rights considered by arbitration courts of constituent entities of the Russian Federation (at first instance) and arbitration courts of appeal. For example, a patent holder, having discovered that his invention is being issued under the name of another person, has the right to apply to an arbitration court to consider the case on the merits, and if the outcome of the case is unsatisfactory for him, to challenge the decision to the arbitration court of appeal. If the patent holder is not satisfied with the decision of the appellate instance, then the case will be considered by the Intellectual Property Rights Court in cassation. Also in the cassation instance, the Court considers complaints against its own decisions.

The functions of supervision over decisions made by the court remain with the Supreme Arbitration Court of the Russian Federation.

Thus, the first specialized court will not consider all categories of disputes in the field of intellectual property. Chairman of the Supreme Arbitration Court of Russia Anton Ivanov made the following statement in one of the media: “The new court for intellectual rights will act in the field of patent rights and trademarks, and copyright issues have largely been outside the scope of attention of this court... However However, we consider its development a very important direction and see great prospects in it."

The opening of the new Court also provides for new requirements for persons appointed to the position of judge. Thus, in addition to the requirements for age, length of service and the procedure for appointment to the position, it is assumed that judges of the “intellectual” court will have additional specialization and qualifications corresponding to the specialization of the court 1. For example, in the field of technology, medicine, agriculture, pedagogy, sports, etc. Such requirements are determined by time and the desire to get closer to international standards of justice. In addition, another participant has been introduced into the arbitration process - a specialist, whose competence will include providing oral advice to the court in understanding certain circumstances of the case.

I would like to believe that the emergence of a new structural unit in the court system of our country, additional requirements for the qualifications of judges, as well as the participation in the trial of groups of intellectual property rights specialists will contribute to a more competent, logical and fair consideration of cases.