RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION AND PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of March 26, 2009 No. 5/29

About some questions which arose in connection with enforcement of part four of the Civil code of the Russian Federation

Due to the enforcement of part four of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code) in court practice there was number of questions. For the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation decide to make to courts the following explanations.

1. Determining jurisdiction of the cases connected using provisions of part four of the Civil Code of the Russian Federation, courts should proceed from the following.

Disputes on the one who is the author of result of intellectual activities are subordinated to courts of law as not connected with implementation of business and other economic activity.

Jurisdiction of disputes on violations of the intellectual rights to results of intellectual activities and means of individualization of legal entities, goods, works, services and the companies equated to them, about establishment of the patentee, about the right of prezhdepolzovaniye and postuse, and also the disputes following from agreements on alienation of exclusive right and license agreements is determined proceeding from the subject list of disputing parties if such dispute is connected with implementation of business and other economic activity.

Questions of application of the Federal Law "About Enforcement of Part Four of the Civil Code of the Russian Federation"

2. The part four of the Civil Code of the Russian Federation is enacted from 01.01.2008. Owing to article 5 of the Federal Law of 18.12.2006 N 231-FZ "About enforcement of part four of the Civil code of the Russian Federation" (further - the Introduction law) it is applied to the legal relationship which arose after its introduction in action. On the legal relationship which arose till 01:01. 2008, it is applied to those rights and obligations which arose after 31.12.2007.

Specified means, in particular, the following.

2.1. By hearing of cases about violations of the rights to results of intellectual activities allowed till 01:01. 2008, courts should be guided by the legislation existing before enforcement of part four of the Civil Code of the Russian Federation.

So, if person allows illegal reproduction of the work till 01:01. 2008, and distribution of its counterfeit copy is performed after 31.12.2007, case in part of violation of the right to reproduction shall be considered according to the Law of the Russian Federation of 09.07.1993 N 5351-1 "About copyright and the related rights" (further - the Copyright law), regarding violation of the right to distribution - according to provisions of part four of the Civil Code of the Russian Federation.

2.2. By hearing of cases about recognition of the intellectual rights (in case of applicable Russian law) the Russian legislation existing at the time of emergence of the appropriate right is subject to application. So, the author of the work is determined on the basis of the legislation existing at the time of its creation; the inventor, useful model or industrial design - on the basis of the legislation existing for date of application for patent grant on this invention, useful model or industrial design.

2.3. In case of contest of decisions of Federal Service for Intellectual Property, to patents and trademarks (далееРоспатент) courts shall consider: requests for patent grant, requests for the trademark, and also requests for the name of the place of goods origin are subject to consideration by Rospatent according to the procedure, established by the legislation existing at the time of submission of requests if other is specially not provided by the law.

By consideration of objections against patent grant, provision of legal protection to the trademark, the name of the place of goods origin courts determine the bases for recognition invalid the patent, provision of legal protection to the trademark, the name of the place of goods origin, proceeding from the legislation existing at the time of application for patent grant, the request for the trademark, the request for the name of the place of goods origin.

At the same time the procedure for consideration of the corresponding objections operating at the time of the request for recognition invalid the patent, provision of legal protection to the trademark, the name of the place of goods origin is subject to application.

2.4. Resolving issue of the termination of legal protection of the trademark ahead of schedule owing to its non-use, courts shall proceed from the three-year term of such non-use (Item 1 of article 1486 Civil Code of the Russian Federation) regardless of date of application for the trademark.

3. Owing to paragraph one of article 6 of the Introduction law the terms of protection of the rights provided by Articles 1281, of 1318, of 1327 and 1331 Civil Codes of the Russian Federation are applied in cases when fifty-year effective period of copyright or the related rights did not expire by 01.01.1993.

According to paragraph one of Item 1 of article 1281 of the Code the exclusive right affects the work, by the general rule, during all life of the author and seventy years, beginning from January 1 of the year following after year of death of the author.

Therefore if fifty-year effective period of copyright of the work expired after 31.12.1992 (but before entry into force of the Federal Law of 20.07.2004 N 72-FZ "About introduction of amendments to the Law of the Russian Federation "About copyright and the related rights", the copyright which established seventy-year effective period) and the work turned into public property, from 01.01.2008 action of exclusive right on this work renews and its term is estimated by rules, the stipulated in Article 1281 Civil Codes of the Russian Federation.

Actions of persons using before enforcement of part four of the Code of the work which were till 01.01.2008 in public property and observing provisions of article 28 of the Copyright law, despite renewal of action of exclusive right on the work cannot be considered as violation. At the same time further use of the work can be performed only with observance of provisions of part four of the Civil Code of the Russian Federation.

4. Based on paragraph two of article 6 of the Introduction law the copyright of legal entities which arose till 03:08. 1993, that is before entry into force of the Copyright law, stops after seventy years from the date of lawful promulgation of the work and if it was not promulgated - from the date of creation of the work. Rules of part four of the Civil Code of the Russian Federation are applied to the corresponding legal relationship by analogy. For the purposes of their application such legal entities are considered as authors of works.

Being guided by these legislative provisions, courts should consider: specifying that for the purposes of application of rules of part four of the Code legal entities are considered as authors of works does not mean recognition of the corresponding legal entities by the authors having all complex of the intellectual rights to the work which can belong to authors - physical persons, - namely the personal non-property rights.

Thereof to the legal entities who acquired copyright till 03:08. 1993, the provisions of part four of the Civil Code of the Russian Federation regulating implementation, the termination of exclusive right and the order it are applied. The personal non-property rights to the corresponding works belong to physical persons.

5. According to article 12 of the Introduction law of provision of Items 1, the 3 and 5 articles 32, of articles 33 and 34 of the Law USSR of 31.05.1991 N 2213-1 "About inventions in the USSR", Item 3 of Article 21, of Items 1 and 3 of Article 22 and article 23 of the Law USSR of 10.07.1991 N 2328-1 "About industrial designs" about privileges and material stimulation are applied in the territory of the Russian Federation before adoption of legal acts of the Russian Federation for development of invention and art and design creativity.

In case of application of this regulation it is necessary to consider that the corresponding legislative provisions, and also other regulatory legal acts adopted for their realization are subject to application in the part which is not contradicting the Civil Code of the Russian Federation.

Article 34 of the Law USSR "About inventions in the USSR", providing payment by the company patentee and company licensee of remuneration to persons promoting creation and use of the invention from 01.01.2008 is applied taking into account item 4 of article 1370 of the Code only regarding obligation of the employer to pay remuneration or compensation to the worker - the author of the employee invention.

6. Proceeding from article 14 of the Introduction law the trade names of legal entities which are not corresponding to rules of paragraph 1 of Chapter 76 of the Civil Code of the Russian Federation are subject to reduction in compliance with these rules in case of the first ambassador 01.01.2008 change of constituent documents of legal entities.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info