Each year the Russian business ombudsman publishes the book of complaints – the collection of problems identified by Russian business. Each industry identifies certain problems and business ombudsman proposes solutions. The intellectual property is no exception. What complaints and what solutions?
First of all a reasonable and balanced protection system is necessary. What it means? Right holders and their representatives prefer to file criminal or administrative complaints instead of filing suits to civil or commercial courts. As a result during the last few years the quantity of criminal cases drastically rising up, but the situation with intellectual property rights in not getting better.
The problem is not so simple. Right holders, as well as users and “infringers”, who infringe IP rights in due course of business activity (it means legal business), are business community. How find a right balance? The ombudsman proposed to exclude criminal liability if corpus delicti lacks “the purpose of sale” – the criterion of public threat. The Russian Supreme Court has been proposed to determine the criterion excluding the liability in criminal and administrative cases.
Secondly, the Russian RosPatent is also under fire. Registration of rights in intellectual property objects takes too long what resulting in high transaction costs for business. The RosPatent data base of registered rights in IP objects is not public, therefore entrepreneurs can face liability for infringement of industrial property due to lack of ability to check certain IP object by the name or content in data base in order to know what is “occupied” or what is “available”.
Pretrial objection of RosPatent’s decisions can be made only in division of RosPatent – Chamber on patent dispute resolutions. It contradicts to the principle that “no one can be a judge in his own case”. What has been proposed: to provide everyone to different data bases of RosPatent and design solutions to integrate them with foreign analogues; to deprive RosPatent of authority to consider objections and make decision in pretrial procedure.
Thirdly, there is no uniformity in administrative and court practice involving entrepreneurs. The Russian Supreme Court has been invited to help with this problem. It could draft and propose for consideration a ruling – some kind of guidance for Russian courts – ensuring 1) equal balance between interests of right holders and users of intellectual property, 2) increasing predictability and uniformity in courts’ approaches including in relation to applying of interim measures, qualification of fair use of signs registered as trademarks, exclusion of evidence, obtained in violation of law, in relation to standard of proof for actual exploitation of trademark and for reasons to reduce the sum of compensation for violation of IP rights.