Protection of the Intellectual Property in Russia

 by: Sergey Talpa

A Governmental commission, headed personally by the Prime Minister has been created in Russia recently in order to counteract the infringements in the sphere of intellectual property. As he stated earlier, little is done for the protection of intellectual property rights in Russia and, therefore, both the rights owners and the state are actually robed. Are there any changes today in this area? What contribution has customs service made in order to protect business intellectual property rights? How can the consumers be sure that when buying medicines, products or clothes of known manufacturers they will get the goods that they expect?

It is certain that the problem has not been solved instantly. Today Russia suffers severe economic damage caused by the infringements of the author's and adjoining rights, misuses of inventions, trade marks, from uncollected tax revenues, and from the impossibility to increase national economic production of goods because of unfair competition.

Counterfeit aviation and automobile spare parts, fake combustive-lubricating materials, toys, medical equipment and pharmaceuticals, food are frequently dangerous to health and life of the population, and pose real threat to national safety of this country.

Starting Point

A legal base of interaction between customs bodies with other law-enforcement and control organs has been created in Russia; Rospatent, a State body which acts as federal enforcement authority in the field of intellectual property protection is now a part of the team.

Joint actions are carried out according to the guidelines of interdepartmental recommendations and measures, aimed at ensuring intellectual property protection, that have been developed and approved by the Ministry of Internal Affairs, by the State Customs Committee, and by Federal Tax Police Service and coordinated with the State Office of the Public Prosecutor of Russia.

Multiple changes and modifications to the legislation, regulating intellectual property protection have been adopted. They helped define customs and state regulations of the foreign trade activity, administrative infringements, and the criminal legislation.

Suspicion of Illegal Trafficking

The legitimate rights owner who has reasonable grounds to believe that his intellectual property rights could be infringed during customs clearance through the border of Russia can file a complaint with the State Customs Committee (SCC) of Russia and request the protection of his rights. The efficiency of this protection directly depends on the completeness of the information submitted by the legal owner who can assist customs bodies in counterfeit products identification. Such data can include information on the places of import and customs registration of legal production, information on exporters, importers of legal production, on distinctive signs of counterfeit goods, etc.

After consideration of application and, if required, after additional verification of the stated information, the documents issued by the State Customs Committee of Russia and the corresponding information are filed with the supervising customs bodies of Russia.

As practice shows, the infringements of the intellectual property rights are quite often accompanied by violations of customs rules. The examples of such are: import of a cargo, for example, claimed to be used for non-commercial purposes, falsified documentation and customs declarations, undeclared or falsely declared products, as well as other infringements for which administrative responsibility is stipulated by the law.

Enforcement Practice

On July, 1, 2002 the new Administrative Violations Code (AVC) of the Russian Federation came into effect which stipulates administrative responsibility for copyright infringement and illegal use of trade marks. The procedural part of the Code states that customs bodies have the right to file reports of the above-stated intellectual property rights infringements discovered during customs control.

The reports, filed by customs bodies serve as a legal ground for court judgments imposing administrative penalties and fines and/or confiscation of the imported goods that violate copyright or other intellectual property rights or trade marks.

The state bodies conducted the analysis of the trade mark protection enforcement practice. The conducted study resulted in the development of guidelines and recommendations for the customs bodies on revealing and punishing offences connected to illegal use of trade marks. Those guidelines define the actions and serve as the legal ground for customs bodies actions and are based on concrete examples.

Customs bodies of foreign states control from several thousand up to several tens of thousand of trade marks. The customs bodies of Russia, according to the information of legal rights owners, control about 450 trade marks which are filed with the intellectual property register of the State Customs Committee of Russia.

The next step is to develop methodical recommendations concerning the owner’s legal and adjoining rights.

The analysis of court judgments shows that there is an urgent need to review the current judicial practice and submit it for consideration to the Supreme Arbitration Court of the Russian Federation.

It is necessary to note, that the first enforcement practice results have shown the necessity to update the administrative violations legislation. In particular, it is required to add to the Code the regulations on conducting investigations with the purpose of their qualitative pre-trial study and add legal permission to conduct the necessary examinations.

It would be expedient to increase the impeachment timeframe, as law breakers, in some cases, delay proceedings by every possible means, and go unpunished because of the impossibility to impeach them just two months after the date of the offence.

The "Greys" Consolidate

A tendency disturbing enough surfaced recently and is connected to "grey" importers joining efforts to counteract the measures adopted by the State Customs Committee of Russia and by customs bodies. The given counteraction is carried out as in the legal field (disputing in due order the requirements of normative legal acts, appealing the actions of customs bodies and their officials), as with the use of financial and administrative resources.

The New Code – The New Opportunities

Starting January, 1, 2004, when a shipment of products is suspected to be counterfeit, the customs bodies are given the right to detain the goods or delay the release of the goods containing objects of intellectual property for up to 20 days, and to inform the legal owner as well as a number of other rights.

The turn-over of the counterfeit goods will considerably decline in case of the intellectual property legislation control at all stages of the foreign economic transaction, starting with the signing of the contract and followed by customs registration.