Trademark protection in the Customs Union "RUSSIA - BELARUS - KAZAKHSTAN"

Post-release of the Press service of the Bar association Customs & Corporate Lawyers according to the results of the "round table" of the Second international forum "EXPOPRIORITY'2010"

December 8, 2010 at the Expocentr, within the Second International Forum «EXPOPRIORITY'2010» Bar association Customs & Corporate Lawyers a meeting of the "round table" on "protection of trademarks in the Customs Union "RUSSIA - BELARUS - KAZAKHSTAN".

Traditionally, about two-thirds of the participants of the "round table" - representatives of the companies - holders who use this event not only for professional discussion of issues of intellectual property protection, but also to form a consensus on the most pressing issues.

Also at the event was attended by members of the Expert Council on customs regulation of the Committee on Budget and Taxes of the State Duma, members of the Secretariat of the Commission of the Customs Union, the Federation Council, the Ministry of Economic Development of Russia, Federal Customs Service of Russia, Rospatent, the Russian Federal Antimonopoly Service, and FSTEC FAPRID . Also at the meeting was attended by representatives of the Chamber of Commerce and Industry of the Russian Federation, the European Business Association, the Belarusian Chamber of Commerce, Rus Brenda Committee distillers, the Russian-German Chamber of Commerce, the State Corporation "RUSNANO", "Russian Technologies", "Rosatom" and "Roskosmos".

The main sessions of the event were announced topic "General principles and approaches to the protection of trademarks on the single customs territory" and "Mechanisms for implementing the protection of trademark rights in the Customs Union" The meeting assessed the results of the first application of the Customs Code of the Customs Union, discussed passed by the State Duma a draft law "On Customs Regulation", and tried to predict the possible development of legislation and practice. The format of the event allowed all present to ask each other exciting and important issues and start an interesting discussion.

Opening the meeting, the moderator of the Round Table, Oksana Kurochkin, a lawyer Collegium "Customs lawyers", Head of the Working Group on Intellectual Property of the Expert Council of the State Duma, pointed out that in a globalizing world economy are becoming increasingly important concepts such as intellectual property, exclusive rights, licensing agreements. In this area the most sensitive barriers to business related to the application of customs procedures, the need to comply with the requirements of various types of control, tax administration in the application of the VAT rate of 0% for exports and tax deductions for the purchase of goods for the manufacture of export products. This not only prevents the expansion of foreign trade activities of existing enterprises using high technologies and international scientific exchange, but also act as a deterrent to the creation of new and export-oriented industries.

According to Oksana Kurochkina, taking into account the rapid development of bilateral trade, it is necessary to establish a clear interaction between business and government authorities on the international movement of goods, including intellectual property. This will allow to provide maximum assistance to the development of foreign trade while ensuring an adequate level of its security.

At the present time, given the establishment of the Customs Union, the legal basis for such cooperation serves the Customs Code of the Customs Union. In this case, the main purpose of international cooperation is to achieve interoperability of customs systems and the removal of barriers to business, and in this area has been significant progress. Oksana Kurochkina also noted the relevance of the issue of simplification of customs procedures and the protection of intellectual property, especially when crossing the border in connection with the alleged entry of Russia into the World Trade Organization. However, from the words of Oksana Kurochkina, accession to the WTO is not the only reason to strengthen the protection of intellectual property rights. Among the most significant are: health, prevent the application of moral harm to the consumer, increase in tax revenue (customs value of the counterfeit goods are usually much lower than the cost of production of the owner), high investment activity holders in the absence of unfair competition in the product market, and non-application of trade sanctions against Russian goods to the markets of third countries.

Oksana Kurochkina also noted the main problems in the sphere of legal regulation of the international movement of goods, including intellectual property. According to her, the Russian Federation has considerable intellectual resources are used inefficiently. At the same time, Russia is the world market as the largest importer of goods containing intellectual property. In such circumstances, must be observed parity interests of all - the state and rights holders and participants in foreign economic activity, and ordinary Russian consumers.

Speaking further, Michael Tyunin, Advisor, Department of Customs Administration of the Secretariat of the Commission of the Customs Union, drew attention to the fact that the establishment of any union is always subject to certain risks due to objectively existing differences interests of participants in the union, and their vision for the association. However, the presence of these risks did not affect the adoption of the Republic of Belarus and Kazakhstan, the Russian Federation and the decision to establish the Customs Union and the formation of its regulatory framework, an organic part of which is the institution of protection of intellectual property.

Next Michael Tyunin recounted the regulatory framework of modern strategy of customs regulation in the Customs Union in the aspects of protection of intellectual property.

For example, in Chapter 46 of the Customs Code of the Customs Union built a two-tier system of protection of intellectual property rights by customs registers - Member States of the Customs Union (Register of the Republic of Belarus, Kazakhstan and the Russian Federation) and the Unified Customs Register of Member States of the Customs Union.

In the Unified Customs Register shall include intellectual property, subject to legal protection in each of the member states of the Customs Union. From the words of Michael Tyunin, here there is a need to harmonize the civil law of the Member States of the Customs Union, in particular the principle of exhaustion of rights, as well as the conceptual apparatus since counterfeit products.

Next Michael Tyunin elaborated on the main provisions of the Agreement on the single customs registry of intellectual property of - members of the Customs Union.

The agreement establishes the order of: conducting a single customs registry of intellectual property of the Member States of the Customs Union, the inclusion of copyright and related rights, trademarks, service marks, cooperation between the customs authorities of the Member States of the Customs Union between themselves and with the owners or persons in the their interests, government agencies and other organizations, institutions and citizens on issues related to the conduct of the Unified Register.

As further noted Michael Tyunin, regulation of entry into the territory of the Member States of the Customs Union of intellectual property not included in the agreement relates to the internal legal regulations of each Member State of the Customs Union. For example: the Civil Code of the Russian Federation regulates the importation of products, which is protected by patent law (Art. 1358 of the Civil Code), the right to selection achievements (Art. 1421 of the Civil Code) and the right to integrated circuits (Art. 1454 Civil Code).

In this regard, according to Michael Tyunin, it seems appropriate conduct within the Customs Union work to harmonize the relevant legislation of the Member States, in order to develop common principles for the management of intellectual property and a single conceptual apparatus.

In the next part of his speech, Michael Tyunin focused on agreements of the customs legislation of the Customs Union, which provides for the protection of intellectual property rights. This is - Agreement on Mutual Administrative Assistance customs authorities of the Member States of the Customs Union (Decision Interstate Heads of Government of May 21, 2010 №41); Agreement on legal assistance and cooperation of customs bodies of the - members of the Customs Union in criminal cases and cases of administrative offenses (Decision of the Interstate at the level of Heads of State on July 5, 2010 №50); Treaty on the peculiarities of criminal and administrative responsibility for violation of the customs legislation of the customs union and the states - members of the Customs Union (Decision of the Interstate Council at the level of Heads of State on July 5, 2010 №50).

As noted by Michael Tyunin, in the states - members of the Customs Union, there are two basic forms of protection of civil rights: non-jurisdictional and jurisdictional.

Non-jurisdictional form of protection of the rights allows the rights holder violated or disputed rights to use different ways of self-defense, which must be proportionate to the violation, and not go beyond the actions needed to suppress it. With reference to the trademark in ways of self-defense can be stamped on the original goods special holograms and other hard copied devices, enabling to distinguish genuine from counterfeit goods.

The essence of the jurisdictional form of protection is that the person whose rights and legitimate interests which may be impaired by illegal actions, appeals for protection to the customs authorities of the Member States of the Customs Union, which are authorized to take the necessary measures to prevent the offense. Protection of intellectual property rights is carried out with respect to the objects included in the Unified Customs Register of Intellectual Property of the Member States of the Customs Union, as well as the customs authorities may act on its own initiative, in accordance with national legislation.

From the words of Michael Tyunin effectiveness of the right to protect its exclusive right under copyright, largely depends on the owner, on how deliberate and verified it will act to protect the rights belonging to him. Cases involving violation of the exclusive rights is one of the most difficult types of cases. This complexity is due to many reasons, some of which are subjective in nature and related to the lack of the Party seeking the protection of his rights necessary expertise, other reasons are objective (eg, lack of normative legal acts).

The inclusion of intellectual property in the range of objects of civil rights is fundamental. Moral rights, which are the results of intellectual (creative) activities, as well as means of individualization producers or goods, due to the fact that they have adequate property values are included in the structure of civil law. For profit Institute for Intellectual Property, also within the scope of business interests that use diverse works of creative work.

However, due to the absence of some objects of some form, by which they can be customized, the legislation of the Member States of the Customs Union does not provide legal protection of intellectual property, such as: ideas, methods, processes, systems, concepts, discoveries, facts.

Speaking about the planned work, Michael Tyunin noted that the Action Plan for the formation of the Common Economic Space provides for the development of the draft agreement on common principles of regulation in the field of protection and enforcement of intellectual property rights.

The draft Agreement is intended to harmonize the principles of regulation in the field of protection and enforcement of intellectual activity and means of individualization of legal persons, goods, services, and businesses (means of individualization) that are protected by the national law of the parties.

Parties to the draft Agreement in its activities based on a common international legal framework for the protection and the protection of intellectual property rights, share the principles of basic World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and are guided by international agreements on intellectual property under the administrative control of WIPO and other international agreements to which the parties to the agreement.

This draft agreement commits the parties to fix in their national legislation such provisions of protection and enforcement of intellectual property rights, under which each State Party to the Agreement provides persons (natural or legal) and the results of intellectual activities, means of individualization of other States Parties to this Agreement, the same level of protection and protection of intellectual property rights which it grants to its own persons (natural or legal) and the results of intellectual activities, means of identification in its territory to the extent provided in the Agreement and the obligations of the parties under international agreements.

The parties can apply in their national legislation such rules, which will provide greater protection of intellectual property rights than those contained in the Agreement, provided that they do not conflict with the provisions of the Agreement.

In this regard, the parties undertake to ensure the protection of intellectual property, based on the provisions of the Berne Convention in 1971 and its Annexes.

Programs for electronic computers, whether in source or object code, shall be protected as literary works under the Berne Convention in 1971.

Composite works, both in machine-readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which does not extend to the data or information that does not affect anyone's copyright subsisting in the data or materials.

In the case of cinematographic works, each party must provide the holders the right to authorize or prohibit the commercial rental to the public of originals or copies of their copyrighted works on the territory of another party to this Agreement.

Parties to the Agreement provide for legislative procedure, which will ensure the effective suppression of trafficking in counterfeit and adulterated goods in the territory of the Customs Union, as well as common measures to combat violations of intellectual property rights on the Internet.

Parties to the Agreement provide for such action to protect the rights of intellectual property, which are fixed in the Customs Code of the Customs Union.

In order to create a unified system of protection of the rights of intellectual property side agreements provide for the conclusion of an Agreement between the authorities of the parties to coordinate actions to protect the rights of intellectual property.

Laws, other regulations and acts of non-normative nature, the final judicial and administrative decisions of general application, made effective by a party which are relevant to the subject matter of the Agreement (the availability, scope, acquisition, enforcement of the rights of intellectual property and the prevention of abuse), subject to formal publication or in cases where such publication is impractical shall be publicly available so that with them could meet both government and copyright holders.

Parties to the Agreement are required to publish offer other agreements relating to the subject matter of this Agreement, which operate between the government or government agency on the one hand and the government or governmental authority other side.

The draft Agreement provides that each Party to the Agreement in response to a written request to the other Parties to the Agreement must be willing to provide information. The party has reason to believe that a specific judicial or administrative decision or a bilateral agreement in the field of intellectual property rights affects its rights under this Agreement, may also make a written request to her to provide access to judicial or administrative decision or bilateral agreements, or to its properly informed about them.

The Parties commit themselves to the notice of draft legislation and other regulations and or non-regulatory acts relating to the subject matter of this Agreement, the Coordinating Working Party on Intellectual Property and the Common Economic Space.

The introduction of the said Agreement, according to Michael Tyunin planned to January 1, 2012.

Concluding his speech, Michael Tyunin pointed out that the development of science and technology constantly pushes the need to address new and emerging challenges in the creation and use of new intellectual property rights, or quality changes previously well known and mastered. These problems are acute in the whole world, they are a satisfactory solution has not yet been found. Therefore there is nothing surprising in the fact that the legislation of the Customs Union on the protection and enforcement of intellectual property rights is in its infancy. Can be predicted in the near future the concentration of efforts on the problems of legal regulation to ensure the safety and protection of intellectual property rights in the Customs Union.

Sergey Shurygin, head of security control of goods containing intellectual property of the Office of trade restrictions, currency and export control of the Federal Customs Service of Russia, in his speech elaborated on the practical aspects of conservation and protection of trademarks by the customs authorities.

According to Sergei Shurygin, despite the fact that the legislation on the protection of intellectual property rights by customs authorities in the countries of the Customs Union has evolved in a similar scenario, the development and harmonization of the regulatory framework took place quite difficult. Nevertheless, managed to keep the mechanism has proved its effectiveness in recent years and meet the requirements of the World Trade Organization and entitling the customs authorities to suspend the release of goods for up to 20 working days.

Thus, each Customs allegations holders continues to lead the national customs registers, as preserved the territorial principle of intellectual property protection.

For publishers, recording their facilities in customs registers have two news - good and bad: the term of protection on the application has been reduced from 5 to 2 years (although the possibility of extending saved), but reduced the amount of the obligation to ensure redress from 500 thousand to 300 thousand at registration in the register of the Russian customs and 10 thousand euros for registration in the Unified customs Register.

As further noted Sergey Shurygin, the decision of the Customs Union Commission on June 18, 2010 determined that will keep a register of the FCS of Russia.

In the Russian law "On customs regulation" sets out regulations related customs code of the Customs Union to the national level of regulation. In particular, this: the order of the national customs register of the competence "ex officio", which allows customs authorities to suspend the release of goods on its own initiative. The latter rule, according to Sergey Shurygin, was the most controversial. Some experts feared to grant wide powers to the customs authorities (despite the requirements of the WTO and the widespread practice of application of such measures by most customs administrations around the world).

At the same time Sergey Shurygin noted the need to establish a clear algorithm of actions of customs authorities on its own initiative, eliminating the possibility of subjective approach.

Currently undergo processing departmental documents establishing the order of consideration of declarations of acceptance by customs bodies of measures relating to suspension of release of goods, and maintaining customs registry of objects of intellectual property, the algorithm of actions of customs authorities to suspend release of the goods, its interaction with right holders.

As pointed out by Sergey Shurygin, currently registered in the customs register 1830 of intellectual property. The vast majority of trademarks. Stored for many years and the proportions of Russian and foreign copyright holders - 50/50.

Sergey Shurygin has led an interesting statistics: the number of detected customs authorities of infringing goods for the 3rd quarter of 2010 by 30% was more than in all of 2009 8.6 million units. Increased and the number of administrative cases initiated by customs authorities under article 14.10 of the administrative code. (at the end of September the number of such cases amounted to 836).

Then Sergei Shurygin elaborated on the key tasks set before the Russian customs authorities by the President of the Russian Federation. First of all, this acceleration of process of customs procedures, the transition to electronic Declaration.

Currently develops the "road map" on transition to electronic document management, including filing of documents for registration of intellectual property objects in the customs registry of objects of intellectual property in electronic form. Developing software and information support of the customs control of goods containing objects of intellectual property.

FCS of Russia actively cooperates on this issue with the Federal service for intellectual property patents and trademarks. According to Sergey Shurygin, the Russian customs authorities managed to work on the pairing information systems, whereby customs authorities have access to databases maintained by the Rospatent, which is especially important in anticipation of the introduction of office "ex officio".

An important element of effective control in the sphere of protection of intellectual property rights, according to Sergey Shurygin, is the risk management system. Knowledge of organizations making in the area of customs, the customs of their knowledge of history, analysis of trade flows, the availability of preliminary information to allow a high degree of accuracy to make a choice of test objects, to distribute optimally forces and means.

Sergey Shurygin emphasized the need of cooperation of customs authorities with the right holders.

In the conclusion of his speech, Sergey Shurygin returned to the issue of the Customs Union. According to him, the customs services failed to find common ground on many issues to solve a wide range of tasks, plan further the problems of organizational, technical, legal nature. To some extent, the brake further integration processes, in particular the process of filling a single customs registry Sergey Shurygin called reunificationist legislation for the protection of intellectual property rights. To solve this problem is now actively working on the preparation of an intergovernmental agreement on common principles of protection of intellectual property rights in the Customs Union. This document does not solve all the problems, but will be an important "building block" in the construction of the Common Economic Space. Next, you need to solve a range of issues: issues of Soviet symbols, creating a single trademark TC and more.

Help this process might formation of judicial practice, supra. Obviously, this will require the development of well-functioning institutions of supranational judicial bodies, which could be addressed, including disputes between economic entities of the Member States of the customs union.

Also Sergey Shurygin noted that in addition to the unification of customs legislation will unify and law enforcement practices.

Oleg Dobrynin, Head of the Control and Supervision of the legal protection of intellectual property Rospatent in his speech pointed out that from July 1, 2010, was an extremely short period of time, therefore, to make any assessment of the Customs Union established mechanisms for the protection of exclusive rights the means of individualization, is premature.

Rospatent shares the concern about the possible problems in the protection of exclusive rights to the means of identification belonging to the holders of the countries of the Customs Union. To prevent and / or permits required coordinated position of the Customs Union, in particular, about the use and protection of exclusive rights to the means of identification, at the same time protected in several member states of the Customs Union.

According to Oleg Dobrynin, a prerequisite for the development of common principles of protection of intellectual property is on the one hand the development of cooperation at the regional level, on the other hand the lack of a bilateral contractual framework of cooperation.

As you know, the participating States of the Customs Union are parties to the Eurasian Patent Convention, the Eurasian Economic Community (under which the Council on Intellectual Property under the EurAsEC Integration Committee), Interstate Council on the Protection of Industrial Property of the CIS. In addition, cooperation at the bilateral level, based on the agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on cooperation in the field of industrial property and similar agreements of the Russian Federation and the Republic of Kazakhstan. It should be said that they were signed in 1994 and require substantial revision and harmonization.

The prospect for effective implementation of the common principles of regulation in the field of protection of intellectual property, according to Oleg Dobrynin, serves a similar system of national legislation in the field of intellectual property of the Customs Union. The main provisions on protection and protection of intellectual property rights contained in the relevant sections of the civil codes.

Along with this, the country has a rather extensive list of special legislation. In each state is constantly working to improve and modernize the legislation, there are national development program of intellectual property protection. Further policy coordination in the field of intellectual property by customs union in this regard, of particular relevance.

As part of the process for accession of the Customs Union to the World Trade Organization, the country did a great job to bring national legislation in accordance with the rules of the organization. Thanks to this process has been established in a general form similar regulatory framework in the field of protection of intellectual property. But, at the same time, there are certain differences in special legislation and the provisions of codified civil law.

Taking this into account, as well as varying degrees of integration of the parties at the international level in the field of protection of intellectual property, a common approach to the development of policy in the regulation of protection and enforcement of intellectual property in the territory of a single economic space will allow to overcome the existing differences.

At the same time, according to Oleg Dobrynin, requires an additional study the question of the need to protect the exclusive rights to the trademarks in each state where they are protected by the application of the measures provided for by national law and international obligations of the participating countries, including the resolution of disputes concerning the legality of the use of means of individualization.

In this case, the establishment of any administrative barriers to the free movement of goods across the customs border of the Customs Union within the unacceptable. Protection of exclusive rights to trademarks customs measures must be carried out in respect of goods coming from countries that are not members of the Customs Union.

For this purpose, forming a single customs registry of intellectual property on the basis of all national customs registers containing, including information about registered trademarks and the territory of the exclusive rights to them. Accordingly, the customs authorities will be able to prevent the importation of goods bearing identical or similar signs in violation of the exclusive rights to protected trademarks in the territory of the Customs Union.

As for the goods produced and transported within the states of the Customs Union, there is, according to Oleg Dobrynin, it seems appropriate to proceed from the need to protect the exclusive trademark rights in the territories of the states where they are protected, other measures, such as through the use of measures of civil, criminal and administrative liability in court.

In conclusion, Oleg Dobrynin said that the EurAsEC Interstate Council at its meeting on 19 November 2010, instructed the customs services of the Customs Union member states to take immediate measures for the organization of information exchange in order to ensure full tripartite monitoring and accounting of goods transported through the customs border of the Customs Union, and placed under the customs procedure of customs transit and temporary importation.

According to Oleg Dobrynin, the Federal Customs Service of Russia to fulfill this request can use the experience of cooperation with Rospatent accumulated from the date of signing of the joint order of 16 August 2001 on the organization of cooperation between customs authorities and Rospatent.

At the present time between the Russian FCS and Rospatent acts Agreement on Cooperation, signed on 30 July 2007 (as amended on May 8, 2009), according to which Rospatent took the following commitments:

• First, a single dose (as at the date of grant) Rospatent provides information about the protected means of individualization of the Russian Federation, namely, trademarks, service marks and appellations of origin, protected on the basis of their registration in Rospatent; of well-known trademarks; Trademark protected in the Russian Federation under international treaties.

• Second, monthly Rospatent provides information to change the information on the previously transmitted to the means of individualization. The mass of data is transmitted in the form of a database with information retrieval system that provides search across all major bibliographic fields and verbal elements of the trademark;

• Third, at the request of the FCS of Russia Rospatent passes available information regarding the presence / absence of interim measures applicable to the transferred means of individualization.

Providing this information is directed primarily to the exercise of powers of the Russian FCS and Rospatent established to ensure coordination of activities, prevention, suppression and investigation of violations of the laws of the Russian Federation in the field of intellectual property.

Oleg Dobrynin said that the experience of interaction between the Russian FCS and Rospatent can be used within the framework of the Customs Union, including between the customs authorities of the participating countries.

On the topic of judicial protection of intellectual property made Maxim Labzin, patent attorney, partner at law firm "Labzin and partners." According to him, the system provides arbitration courts consideration of disputes by judges who specialize in cases involving the protection of exclusive rights, including trademarks. If we talk about the system of courts of general jurisdiction, it is based on the jurisdiction of a particular judge all cases for defendants who are in a certain area.

Next Maxim Labzin elaborated on the project of establishing the court for intellectual property rights. The intention of the bill, this court, as part of a panel of three judges, will be considered as a court of first instance all cases concerning challenges to normative legal acts in the field of intellectual property, as well as non-normative legal acts, decisions and actions (inaction) and Rospatent its officers, federal executive body on selective achievements and bodies, to consider applications for secret inventions.

This court will be the court of cassation on the above matters, as well as all cases of protection of intellectual property rights, considered by other courts of arbitration in the first instance and appeal.

In cassation disputes in cases which have been considered by the court in the first instance, will be reviewed by the Bureau of the Court, and in cases of infringement of intellectual property rights protection - a panel of three judges.

According to Maxim Labzina the creation of such a court will provide even greater certainty of judicial practice (apparently his judicial acts will have the authority and the courts of general jurisdiction), as well as reduce the time cases.

Speaking about the peculiarities of cases Appeals of Rospatent (previously - the Chamber of Patent Disputes), Maxim Labzin noted that the number of such cases in recent years has increased significantly, with the number of cancellations Rospatent decisions by courts remains consistently low. Such statistics gives grounds Rospatent talk about the low number of illegal or unreasonable decisions. The overwhelming majority of such cases in Russia in the first instance consider two ships - the Moscow Arbitration Court and Dorogomilovskiy District Court of Moscow, on whose territory the Rospatent.

Maxim Labzin also noted a trend towards an increase in the amounts levied by the courts compensation for infringement of the exclusive trademark rights.

Andrew Kudakov, President of the International NGO "Council of the Eurasian Patent Attorneys" in his report at the meeting of the Roundtable spoke on the existing contradictions in the Russian and international law, which adversely affects the interests of the owners.

In our country legally set the priority of international treaties of the Russian Federation over the provisions of the Russian legislation. In the field of industrial property protection to such international treaties, together with the Paris Convention and the Eurasian Patent Convention applies, in particular, the Madrid Agreement Concerning the International Registration of Marks (hereinafter the Agreement) and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. According to Andrew Kudakov, the question of the date of the international legal protection of trademarks registered in accordance with the Agreement or the Protocol previously periodically arise when considering the calculation of the three-year period of continuous non-use of the trademark, which is the basis for early termination of legal protection in accordance with art. 1486 Civil Code. In their responses to the many requests about this, Rospatent rightly pointed out that the legal protection of a trademark shall arise from the date of the international registration in accordance with paragraph 1 of article. 4 of the Agreement and to claim 1 a) of Article 4 of the Protocol. However, since the question was asked in relation to signs which have been in place for at least three years, proved to be outside the scope of the legal status of an international trademark during the period between the date of the international registration and the final decision of the Russian authorities about the impossibility of protection of the mark on the territory of Russia, or expiration of the period in which notice of the impossibility of protection could be aimed at WIPO Rospatent.

To date, according to Andrew Kudakov, this issue was not relevant. Recently, however, there have been several clashes between Russian registrations and produced later, the international registration. And the collision happened exactly in the above mentioned period of the international registration.

Russian claims on the copyright owner sign the other side (the offender) objected that it is also a legal copyright holder, Recalling the provisions of Article 4 of the Protocol Relating to the Madrid Agreement. In fact, we have a situation in which the offender was covering his violation of a kind of "Madrid shield." Attempt to challenge the action of these registrations was faced with some kind of contradictory positions of the Chamber of Patent Disputes, which, on the one hand, took up the objection to granting legal protection of international trademarks, and on the other hand, when considering on board, refused to allow an appeal on the grounds that protection of the mark in Russia has not been provided. According to Andrei Kudakov, objection inactive in Russia sign could not be taken into consideration. And if the objection is accepted, therefore, it is recognized that the registration is valid, and then put forward by the House of grounds for refusal apply. In respect of the international registration on which Rospatent has not yet been made examination, the objection was not taken with the wording of that registration has no effect on the territory of Russia.

Directed inquiry WIPO since the beginning of the international registration in respect of Russia, specified in the application, a response was received, which as of this date clearly indicate the date of the international registration.

In the opinion of specialists FIPS effect of the international registration in the countries mentioned in the international application starts immediately after making an entry in the International Register, but at the same time, they noted that the question of the interpretation of the legal protection does not fall within the competence of Rospatent.

International treaties provide for protection of the mark in effect on the date of registration of Russia sign in WIPO, by virtue of the legislation set the priority of international norms over national law.

Thus, according to Andrew Kudakov, a paradoxical situation. Since the international registration is valid from the date of entering information about it in the register of the International Trademark WIPO, the unscrupulous persons actually since the international registration shall have the rights to the trademark in Russia. This is especially important due to the fact that Russian customs authorities and Ministry of Internal Affairs shall take into account the international registration, confirmed by a certified copy of an international certificate, without notification and possible final decision Rospatent.

According to Andrei Kudakov, it seems appropriate, in respect of international registrations, enable interested parties to challenge their validity in Russia immediately after the publication of information about the work of WIPO registration. This will allow rights holders to effectively fight counterfeit goods without waiting finish the procedure of examination of the international registration in Rospatent and subsequent correspondence, which can be long enough to delay. However, according to Andrew Kudakov, this is only possible by making appropriate changes in the Civil Code, in particular in claim 1 art. 1512, the possibility of challenging and international registrations, including in the period under review.

Concluding the event, Oksana Kurochkina thanked those present for their active position and pointed out that, despite the differences are discussed during the Round Table, the participants agree on the main point: the relevance of the urgent and ongoing changes in the legislation on the protection and trademark protection on a single customs territory. That is why the main result of the meeting was the thesis of the need for closer interaction between the participants of foreign economic activity, owners and authorized in the field of intellectual property by public authorities.