Review of jurisprudence on intellectual property in the Republic of Belarus
(April 2015)
Denis Gusev, The Head of Customs & Corporate Lawyers Bel, Minsk, the Republic of Belarus
This review will consider the most interesting debate on intellectual property in the territory of the Republic of Belarus for the last time. But first I would like to give some information about the work of the Board on matters of intellectual property of the Supreme Court in 2014. So, in 2014 in the production of the Judicial Board for Intellectual Property High Court of the Republic of Belarus was 127 cases. This accounted for 77 cases disputes concerning copyright and related rights; 50 cases - disputes in the field of industrial property rights, of which 4 cases - appeals against decisions of the Appeal Board of the Patent Office, 1 case - the complaint on the decision of the Antimonopoly management and pricing policies of the Grodno oblast executive committee.
In 2013, production of the board were 106 cases. Compared with the year 2013 the number of cases in 2014 increased by 21 cases (19.8%), which indicates continued growth dynamics revenue cases.
Total board finished production in 2014 104 cases (in 2013. - 86 cases), of which 67 cases have made arguments on copyright and related rights; 37 cases - disputes in the field of industrial property rights, including 3 cases - appeals against decisions of the Appeal Board of the Patent Office, 1 case - the complaint on the decision of the Antimonopoly management and pricing policies of the Grodno oblast executive committee. Carryover for 2015 amounted to 23 cases (balance in 2014. Amounted to 20 cases).
In comparison with 2013 the year in 2014, 18 cases increased the number of cases.
With a judgment in 2014 examined 57 cases in 47 cases determined to be cut-off.
In 20 cases the requirements are satisfied in full, of the 14 cases the requirements are satisfied to the extent of 23 cases to meet the requirements denied.
In 47 cases, or 45.2% of the production ceased, of them 33 cases - in connection with the rejection of claims in 12 cases - in connection with the approval of the settlement agreements, 1 case - due to the immunity waived the case to the court of the Republic of Belarus 1 cause - in connection with the liquidation of the legal entity (p.5 st.164 GIC Republic of Belarus).
For the same period in 2013 with a judgment reviewed 46 cases were terminated on 40 cases or 46.5% of the total number of cases.
CATEGORIES DEAL WITH CASES COURT DECISIONS:
Disputes in the field of industrial property:
Total for the period examined 37 cases in the field of industrial property (in 2013. - 43 cases).
The claims are fully satisfied at 8 cases (in 2013. - 11 cases); the claim was satisfied partly 5 cases (in 2013. - 5 cases); denied the claims in 13 cases (in 2013. - 15 cases).
Production stopped 11 cases in connection with the failure of the claims of the plaintiffs (in 2013. - 12 cases).
A breakdown by category:
The largest category is suits for the Suppression of the acts that infringe on the trademark - 11 (13 - in 2013).
Here are some examples:
On consideration of the civil case under the claim of "R. SA" to an individual entrepreneur or individual entrepreneur R. B.
October 21, 2013 the Judicial Board on matters of intellectual property of the Supreme Court of the Republic of Belarus was considered a civil case under the claim of "R. SA "to an individual entrepreneur or individual entrepreneur R. V. violation of his exclusive right to the trademark Ravak, because without the consent uses the designation ravak, confusingly similar to its trademark on the Internet, including domain name ravak.bu and website under the domain specified in relation to goods of the 11th and 21st class of the Nice Classification, for which the trademark is registered.
Decision of the Board on matters of intellectual property of the Supreme Court of the Republic of Belarus of October 21, 2013 the claim of "R. JSC" banning SP B. ravak use the notation in the domain name ravak.bu, to change the domain administrator and transfer of ravak.bu his administration of "R. SA", for the recovery of legal costs incurred by the plaintiff were satisfied, and the suit against R. SP was refused on the basis of the following.
After analyzing the designation registered as a trademark Ravak, and the designation used in the domain name ravak.bu, the panel of judges concluded that compared designations have a common word element ravak, which is the dominant element in the trademark and the main element in the domain name. Therefore, compared designation, according to the Judicial Board, are confusingly similar.
Judicial board also considered that plumbing products offered for sale on the Internet site under the domain name ravak.bu and goods 11 th and 21 th class of ICGS, which enjoy legal protection in the Republic of Belarus trademark, are homogeneous, since they are similar in form, their purpose and range of consumers.
It was also found that the plaintiff consented to the use of the domain name ravak.bu designations ravak, confusingly similar to a trademark Ravak, in respect of similar goods, not given that the defendant's representative at the hearing was not disputed.
After evaluating the evidence collected in the case in their totality, the panel of judges concluded that the use of the defendant SP B. in the domain name ravak.bu verbal designation ravak without the permission of the complainant, the trademark owner Ravak, in respect of goods, homogeneous goods 11 and 21 th class of the Nice Classification, for which the mark is registered, is a violation of the exclusive right of "R. SA" in such trademarks.
On consideration of the civil case under the claim of the Czech company "X" to the Belarusian company "G"
November 6, 2013 the Judicial Board on matters of intellectual property of the Supreme Court of the Republic of Belarus was considered a civil case at the suit of the Czech company "X" to the Belarusian company "G" on the prohibition of the respondent to bring into the territory of the Republic of Belarus of goods - Krusovice Imperial beer in glass bottles and beer Krusovice CerNe in cans marked with the above trademark.
Decision of the Board on matters of intellectual property of the Supreme Court of the Republic of Belarus of November 6, 2013 the plaintiff satisfied the requirement for the following reasons.
After evaluating the evidence, the panel of judges concluded that the import defendant on the territory of Belarus from the territory of the Republic of Lithuania of goods bearing a trademark KRUSOVICE, - Krusovice Imperial beer and beer Krusovice CerNe, offer it for sale and selling on the territory of the Republic of Belarus without the consent of the plaintiff as the owner of the trademark is a violation of its exclusive right to the trademark KRUSOVICE.
The representative of the defendant's argument that the company "G" shall not be brought into the territory of the Republic of Belarus the above items, the panel of judges praised as untenable as the customs declaration for the goods shall be completed and submitted by the defendant - Ltd. "G", it is also the recipient of the goods and the person responsible for financial settlement, respectively, it was made the introduction into circulation of the goods (beer) by importation into the territory of the Republic of Belarus on the said customs declaration.
It also argued that the defendant did not commit acts of use of a trademark owned by the plaintiff and did not violate the rights of the plaintiff, as the imported beer Krusovice manufactured and marked by the trademark of the plaintiff - the owner of the trademark and they also put into circulation, the judiciary Board recognized the contradictory claim. 5, Art. 20 of the Law "On Trade Marks and Service Marks", since, as follows from the case, Krusovice beer was imported by the respondent of the Republic of Lithuania.
On consideration of the civil case under the claim of UE "CPP" to LLC "CPP" P "on the infringement of the exclusive right to the trade name.
November 11, 2013 the Judicial Board on matters of intellectual property of the Supreme Court on the suit UE "CPP" to the UE "CPP" P "on the infringement of the exclusive right to the trade name.
Decision of the Board on matters of intellectual property of the Supreme Court of the Republic of Belarus of 11 November 2013 UE "CPP" in the lawsuit against LLC "CPP" P "to stop violating the exclusive right to the trade name and the recovery of legal costs in the payment of the state fee is denied based on the following .
Comparing the designation of "Center of preventive disinfection" Profdezdelo ", being the individualizing of the company name of the defendant, with individualizing part of the" Center of preventive disinfection "trade name of the plaintiff, the forms and methods of use of plaintiff and defendant comparable symbols in public circulation in the provision of similar services, the judicial board has come to the conclusion that the defendant used the designation is not like individuate of the company name as plaintiff, resulting in the identification of these legal persons in public circulation.
According to the Judicial Board, individualizing of the defendant company name containing the word "Profdezdelo", allows the user to allocate this business entity with respect to services provided to legal entities, individualizing of which includes the words, or consists of the words "Center of preventive disinfection".
Judicial board has considered the arguments of the representatives of the plaintiff groundless that the use of the defendant in the company name the words "Center of preventive disinfection" is able to mislead consumers concerning the person providing services with such an indication and the possible confusion of the plaintiff and defendant in a civil turnover of the Republic of Belarus, since the confirmation of these arguments the plaintiff has not presented evidence to confirm the reliability of the above circumstances.
The remaining statistics is as follows:
3 - appeals against decisions of the Appeal Board of the Patent Office (5 - in 2013.);
1 - against the decision of antimonopoly control and pricing policies of the Grodno oblast executive committee (2 - in 2013.);
10 - claims for early full or partial termination of legal protection in the Republic of Belarus of trademarks (11 - in 2013.);
3 - actions to stop violating the exclusive right to the trade name (2 - in 2013.);
2 - actions on suppression of acts infringing the exclusive right of the patent holder (1 - in 2013.);
3 - action to recover compensation for the use of industrial property right (1 - in 2013);
1 - a lawsuit to compel the conclusion of the license agreement (in 2013. - 0 of affairs);
1 - a lawsuit to establish the fact of nullity of the license agreement (in 2013. - 0 of affairs);
1 - a claim for invalidation of the transaction (in 2013. - 0 of affairs);
1 - an action for the recovery of legal costs (in 2013. - 0 cases).
Disputes in the field of copyright:
Total examined 67 cases of this category (in 2013. - 43 cases).
The claims were satisfied in full in 12 cases (in 2013. - 9 cases);
9 cases the claim was satisfied in part (in 2013. - 4 cases);
It denied the claims in 10 cases (in 2013. - 2 cases).
In 36 cases were terminated, of which 22 cases - due to the failure of the claims of the plaintiffs, in 12 cases - in connection with the approval of settlement agreements, and 1 case - due to the immunity waived the case to the Supreme Court of the Republic of Belarus, 1 case - in the liquidation of the legal entity (paragraph 5 of Art. 164 Code of Civil Procedure) (in 2013. 28 cases were terminated, of which 24 cases - due to the failure of the claims of the plaintiffs, 4 cases - in connection with the approval of settlement agreements).
In this case, the largest category is claims for compensation for breach of copyright - 54 (in 2013. - 37 cases).
The breakdown for the other categories:
4 - claims of suppression of acts infringing the exclusive right of copyright object (in 2013. - 0 of affairs);
2 - claims for the recovery of fees and interest for the use of borrowed money (in 2013. - 3 cases);
1 - a claim for recognition of the right of authorship, the recovery of compensation for the infringement of the exclusive rights of copyright and compensation for moral damages, the publication of information about violations and the confiscation of copies of the book (in 2013. - 0 of affairs);
1 - action to recover the amount (in 2013. - 0 of affairs);
1 - claim for recognition of the relevant legislation is not a unilateral refusal from the contract (in 2013. - 0 of affairs);
1 - a lawsuit to compel to fulfill obligations under the contract and to ban the use of works (in 2013. - 0 of affairs);
1 - a lawsuit to establish the fact of nullity of the contract and compensation for moral damages (in 2013. - 1 case);
1 - a claim for invalidation of the transaction (in 2013. - 0 of affairs);
1 - a claim for recognition of the right of authorship of the software and to ban its use (in 2013. - 0 cases).
These data suggest that, compared with 2013 the year in 2014 reduced the number of disputes in the field of industrial property (37/43) and increased in the area of copyright (67/43), as well as a significant increase in the number of disputes that settled voluntary basis (47/40).
In addition, in 2014, new categories of cases which were not considered before a panel. In 18 cases the plaintiffs, the defendants and third parties are foreign companies and organizations as well as individuals (in 2013 - 7 cases).
In 2014, the plaintiffs and claimants in the republican budget on submitted claims, complaints and claims paid state fee in the total amount of 240,018,545 Belarusian rubles 1 174 EUR 7 931.89 and USD.
Analysis of statistical data shows that in 2014, 45 cases (43.3%) held preliminary meetings (in 2013 - 58 cases or 67.4%), of which 8 reappointed for a preliminary hearing in connection with the the uncertainty of the legal positions of the plaintiffs.
In 26 cases (57.8%) in the preliminary meetings of a court ruling, to resolve the dispute on the merits (in 2013. - 33 cases or 56.9%).
Of the 104 reviewed in 2014 on the merits, 95 cases or 91.3% completed in the first trial, 9 for the production was completed in the second trial.
Of the 86 cases examined on the merits in 2013, 81 or 94.2% are considered to court decisions in the first trial, including 33 -in a preliminary hearing.
Procedural terms of cases provided for by Articles 158 and 337 Code of Civil Procedure of the Republic of Belarus, and in 2014 all the cases were considered in the board in terms of the procedural legislation.
In 2014, with the participation of lawyers and patent attorneys reviewed 34 cases out of 104, or 32.7% (in 2013 - 35 cases, accounting for 40.7% of the examined 86 cases).
In judicial review in 2014 were tested 8 making board.
Resolution of the Presidium of the Supreme Court of the Republic of Belarus of 24.06.2014g. granted the President of the Supreme Court of the Republic of Belarus of 23.05.2014g. and set aside the decision of the Board on matters of intellectual property of the Supreme Court of the Republic of Belarus of 27.01.2014g. in the case of the claim Belyakov AA to "TV activity Polska" Spulka Aktsiyna, the Republic of Poland, the prohibition to commit acts that violate the exclusive rights to the trademark, and the case was sent for retrial in a different panel of judges.
The remaining judgments recognized as legitimate and reasonable and in bringing them supervisory protest is denied.
In 2013, quashed the judgment by way of supervision was not.
An analysis of the above data shows that in 2014, Judge board provided at the appropriate level of protection of the rights and legitimate interests of citizens and legal persons in the field of industrial property and copyright.
The judges of the college there had been no unreasonable deposits litigation due to improper pre-trial preparation, all the ruling of the decision to transfer to be executed, some of them executed, and monitor the implementation of the court orders that the end of the reporting period had not been executed.
In addition to the consideration of cases of first instance, judges and other board held a job that has a positive effect on the overall performance of the Supreme Court's Collegium for intellectual property and to raise the skill level of each judge: the study and generalization of judicial practice, the interaction with the media and pravorazyasnitelnaya work, participation in standard-setting activities to improve legislation in the field of intellectual property and others.