Published: “Russian Business-newspaper” №842 (13)
Author: Oksana L. Kurochkina,
Member of the Expert Council of the Committee on budget and taxes of the State Duma of the Federal Assembly of the Russian Federation
Protection of objects of intellectual property (IP) in the context of the simplification of customs procedures is extremely urgent task in connection with joining Russia to the World trade organization. However, WTO membership is not the only reason to protect the civilized market of IP: it is the health of the population, opposition to the causing of moral harm to the consumer and increase in tax revenues (customs value of the counterfeit goods, usually substantially lower than the cost of the original products), high investment activity of rights holders in the absence of unfair competition on product market and other.
Civilized market of IP needs, naturally, not only in one particular Russia; he has to win in the Common economic space of the three countries: Russia, Belarus, and Kazakhstan. And all parties must actively work on setting up an optimal legal environment for the formation of this market.
What are the main problems of the CES members nowadays face in the sphere of legal regulation of the international turnover of goods containing intellectual property? First of all, is the issue of parallel imports, that is, importation, without the sanction of the right holder on the territory of the country of original product, protected trademark. The problem of parallel imports is closely connected with such a notion as exhaustion of rights, because the possibility of importation of goods without the consent of the right holder or official distributor directly depends on application of the national concept of exhaustion of rights.
Russian national exhaustion, according to FAS, causes substantial damage to individuals and legal entities – residents of the Russian Federation. FAS proposes to amend article 1487 CCRF changes which will allow introducing in our country the international exhaustion. Another way to solve this issue offer to go to a number of rights holders, who see in parallel importing an act of unfair competition associated with the unlawful use of IP by unauthorized persons. They insist on making amendments in the administrative code article envisaging the possibility of attraction to administrative responsibility of the persons, importing to the territory of Russia the original goods without the consent of the right holder.
Here it should be noted that Russia itself has significant intellectual resources (another question is that they are not effectively), but at the same time is the largest importer of goods containing intellectual properties. In other words, you must observe the parity of interests of all parties – the state, and rights holders and participants of foreign economic activity, and ordinary consumers.
The second problem is the existence of the Soviet trademark, which, in our assessment of Rospatent, after the collapse of the USSR there is about 4000. It is about 70 trademarks; confectionery products about 250; medicines, about 600; the rest of them – industry. Thus, today the Soviet trademarks are a considerable part of the total number of trademarks, which shall be protected in the countries of the Customs Union and, in particular, in the Russian Federation. It is worth noting that in the national system of registration of trademarks in each of the member States of the customs Union rights to such marks have been registered for the various rights holders. As the situation with the Soviet trademarks is a problem, which has no direct legal regulation either in Russia or in other countries TC, and given the number of Soviet trademark to be protected, there is a need in creation of a legally regulated mechanism, which would provide for a civilized use of Soviet brands manufacturers.
Thirdly, it is a problem of harmonization of the legislation of the three countries in the field of IP. In Russia established the basic principles of the world standards of the system of intellectual property protection, but until the problem of such protection (primarily from counterfeit and fake products) has not disappeared. Moreover, the CU and the creation of the CES, according to many experts, which the author also shares, the problem is largely will escalate. The reason, in particular, that by the time of the establishment of the Union in our countries has similar, yet distinct mechanisms and the effectiveness of the legal system of regulation of economic relations in the field of IP. Their unification under uniform standards can mean the rebuilding of different degree of complexity and duration.
As customs regulation is performed through establishment of certain administrative legal relations, the introduction of provisions relating to enforcement of IP should be accompanied by the development of clear and uniform mechanisms and control procedures. They are still missing. This means that the additional administrative barrier for the free movement of goods, including within the CES, is inevitably.
Legislation of the CES on the protection and enforcement of intellectual property is still in the stage of formation. It should be noted that our countries are committed to providing its citizens with an effective means of legal protection and enforcement of IP rights and the work in this direction.
So, is developing the international Treaty on uniform procedures for the registration of trademarks and appellations of origin (geographical indications); the international agreement on the definition of a single procedure for the management of copyright and related rights on a collective basis, creation of databases containing information about the protected objects of copyright and related rights; the international Treaty on coordination of actions of the competent authorities of the parties on protection of rights to results of intellectual activity; international agreement on the Coordination Council of the CES of IP.
In other words, can we expect in the near future the further concentration of efforts on the problems of legal regulation and protection of intellectual property rights on the territory of the CES.