The article “The Russian Business Newspaper”, № 773 (40) of 26 October 2010.

During the formation of a single customs territory has any problems with intellectual property

According to the Federal Customs Service of Russia, in the first half of 2010, the customs authorities of the Russian Federation was delayed 5 million units of counterfeit products. This figure is one and a half times more than last year. According to expert estimates, HSE counterfeit is 5% of retail sales in Russia, which is about 900 billion rubles a year.

The importance of protection of intellectual property (IP) is the activity of customs authorities. Especially in the context of the Customs Union, as the fight against counterfeiting in the framework of one country is unlikely to bring the desired effect.

Chapter 46 of the Customs Code of the Customs Union “Features of customs operations in respect of goods containing intellectual property” provides for terms of protection of IP rights, prescribes the procedure for suspension of goods IP and Cancellation of such decisions. And also establishes the rights of copyright holders. But, unfortunately, according to the head of the working group on intellectual property of the Expert Council on customs regulation of the State Duma Committee on Budget and Taxes Oksana Kurochkina, the head 46 is general in nature and contains a large number of reference rules requiring the signing of separate agreements and regulations.

Chapter 42 of the draft federal law on customs regulation expands the powers of the customs authorities in the fight against counterfeit products. The essence of the proposed additions is that customs officials can suspend up to 7 business days of the release of goods containing intellectual property objects, which are not included in the Customs Register of IP. The proposed rule would allow customs officials to act ex officio (on official duty) without application owner, but with its notice on the following day to suspend the release of goods in the identification of suspected counterfeit.

But, according to Oksana Kurochkina, the trouble is that at the moment we do not exist regulated and generalized criteria for determining the suspected counterfeit. That is, a customs officer will rely only on their own, purely subjective opinion about a particular product.

The introduction of this provision raises serious concerns among traders. Because it can lead to unnecessary suspensions release of the goods, including original products, in the absence of any liability on the part of the customs inspector. The first draft of the Federal Law, by the way, was present norm that involve a customs officer responsible if there is the intention of violating the rights of traders. However, in the edition prepared for the second reading in the State Duma, the rule disappeared.

But since the issue of care on traders, experts, rights holders, customs officials put forward a number of proposals for mechanisms to implement this provision. Thus, according to the agreement of the Russian FCS and Rospatent customs officers will be able to access a single database containing full details of the copyright holder. However, there is no clear understanding of who will indemnify traders and the holder, if the release of goods has been suspended, and the goods found the original. Therefore, the introduction of this legislation, said Oksana Kurochkina, must be accompanied by the development of clear guidelines and control procedures, which are currently lacking. Otherwise, you may receive additional administrative barriers, including benign and original products.

What other problems with any of the IP object in the formation of a single customs territory? This lack of common terminology to define such basic concepts as counterfeit, fake products, counterfeit products, gray imports. In the regulations, judicial practice, the media, various, sometimes diametrically opposed interpretations of these concepts. And therefore quite natural suggestion is Oksana Kurochkina for inclusion in the legislation TC legal definitions of counterfeit (ie manufactured in violation of copyright) and falsified (ie fake) products. This will help protect consumers from buying low-quality product, and law enforcement and regulatory authorities – to combat the spread of counterfeit goods. In this connection, will require a comprehensive unification of civil legislation of the Customs Union.

One of the main features of the legal regulation of IP rights are territorial in nature of such rights. That is, the author’s right to protect and defend only in the territory of the State where they had been properly declared. And obtaining such rights in one state does not entail their recognition in the other. This raises the issue of exhaustion of rights. The Customs Union is a different attitude towards it. In Russia and Belarus apply the territorial principle of exhaustion of rights in Kazakhstan – International. International is the exclusive right of the copyright owner that is settled in respect of a particular product at the time of its first introduction into circulation in any country. Simply put, sell a product, the right holder loses the right to tell the new owners how to manage in the future: transported to another country, selling, etc. The territorial principle (similar to the current EU regional) means that even if the goods are resold several times, to bring in it can only be with the permission of the trademark owner.

What is a problem in this case? Take any trademark validly entered into circulation in the territory of the country where it is protected. The existence of the Common Economic Space (CES) suggests that it can be freely moved to another country of the Customs Union. And there is an exclusive right to the same trademark may be owned by a completely different person!

Also, there are issues related to the conduct of a single customs registry of IP, such as trademarks, rights to which are fastened around the TC for different owners. This is an old problem mostly with trademarks of the USSR concerning the confectionery and alcoholic beverages. Do holders appears that products labeled in such a sign would be counterfeit when imported from one country to another CU …

What the experts suggest? International experience, as TS Russia, Belarus and Kazakhstan in this issue is not unique. Have experience of the EU, which is enshrined in the Statute of the Council of the European Community from 20.12.1993 N 40/94, in respect of trademarks in the territory of the Community. According to the document attached trademark of the European Union having equal status and equal legal force throughout the EU. By the way, the EU operates a regional principle of exhaustion, suggesting that the exclusive right to the trademark is settled after the introduction of the goods into circulation copyright or other person with his consent in the territory of one of the countries outside the EU. Thus, the mechanism is implemented local intra-market, which allows free movement of goods in the EU.

This experience can be applied, according to the examiner and the Commission of the Customs Union, and inside our vehicle. However, it is obvious that all disputes will be resolved exhaustion of rights only after the final formation of the CES as address issues of harmonization of legislation at the national level.


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