1,000 to 50,000 times the minimum wage.
According to paragraph 2 of Article 10 of the Patentpatented industrial design lawrecognized as used in the product if suchthe product contains all essential featuresindustrial design reflected onproduct pictures and listedessential features of an industrial design.
Since the validity of the patent is not contested inestablished by Article 29 of the Patent Laworder, the claimant’s right to an industrial designsubject to judicial protection.
Disputes on invalidity of patents onthe grounds provided for in subparagraphs 1 – 3paragraph 1 of Article 29 of the Patent Law, referred tothe specified article to the competence of the Chamber ofpatent disputes. Arbitration courtsare considering cases for recognitioninvalid relevant decisionsRospatent.
Consequently, the circumstances calledjustify the invalidity of the patent, do not havevalues for the correct consideration of the dispute abouttermination of patent infringement.
The court, when considering the case, did not really giveassessments of the defendant’s arguments about non-compliancethe controversial industrial designpatentability. However, subject to the provisionspart 3 of article 288 of the APC RF, this is notgrounds for cancellation or modificationcourt rulings of the appellate instance, sohow it did not and could not lead to acceptancewrong judicial act.
Thus, the cassation courtrecognized the lawfulness of the satisfaction by the courtappeal instance of claims.
11. The court indicated that the presence in the productthe defendant has additional features, in addition to allessential features of a patent protectedthe industrial design of the plaintiff, cannot serveground for denialmanufacture of the defendant’s product usingpatented industrial design.
Limited liability companyapplied to the arbitration court with a claim against anothersociety with a demand to cease actions,violating the exclusive rights of the plaintiff -the holder of a patent for an industrial design,expressed in production and installationadvertising media, and dismantleadvertising media of the defendant.
The defendant against the satisfaction of the declaredobjected, pointing out the non-identityadvertising media produced by him to industrialsamples of the plaintiff.
The court found that the plaintiff is the ownera patent for an industrial design.
By the definition of the arbitral tribunal,examination for permission requiringspecial knowledge of the issue of the presence orlack of posted by the defendantadvertising media of all essential featuresindustrial design for the patent of the plaintiff.
The examination established the presence inadvertising media of the defendant as everyoneessential features of an industrial designthe plaintiff’s patent and some additionalsigns.
Despite the differences betweenthe industrial design of the plaintiff and objects,manufactured by the defendant, the court declaredsatisfied the requirements, indicating that the Patentthe law does not require for recognition of the fact of violationindustrial design patent fullidentity of artistic designsolutions of a patent protected product and a product,manufactured by another person.
The presence in the defendant’s product of additionalsigns, in addition to all essential signspatented industrial designthe plaintiff is not a ground for refusal to recognizethe fact of manufacturing the defendant’s product withusing a patented industrialsample.
III. Trademark right
12. Examination by the Patent Chamberdisputes and Rospatent objections togranting legal protection to a trademarkdoes not entail mandatory suspensionproceedings on the violation of the rights to thistrademark.
Open Joint Stock Company applied toarbitration court with a claim against a closed joint stocksociety about the obligation to stop production,sale or other introduction into economic circulationconfectionery usinga designation confusingly similar tothe plaintiff’s trademark, destroylabels and packing materials, remove fromconfectionery products manufactured by the defendant,the corresponding trademark.
The defendant did not deny the use ofa designation confusingly similar tothe plaintiff’s trademark. At the same time,motion to suspend proceedingsthe case until the entry into force of the decisionRospatent, adopted based on the resultsconsideration of the objections filed by the defendantagainst the granting of legal protection to a commoditythe sign of the plaintiff.
The court refused to satisfy the declaredpetition, noting that in itselfconsideration by the Chamber for Patent Disputes andRospatent objections to the provision oflegal protection of a trademark by virtue of Article 143The Arbitration Procedure Code of the Russian Federation is not a mandatory basissuspension of proceedings on the case.The proceedings on the case may be suspendedin relation to subparagraph 1 of paragraph 1 of article 143 of the APCRF only in case of establishment of impossibilityconsideration of the case of violation of the rights to commoditypending markChamber for Patent Disputes and Rospatent. INin this case, the defendant’s motion did notcontained indications of the circumstances,testifying to this impossibility. Whenthe court indicated that the decision of Rospatent following the resultsconsideration of objections by virtue of subparagraph 1Article 311 of the APC RF can be recognized againdiscovered circumstance.
When considering the case on the merits by the court, the firstinstances, the stated requirements are satisfied.
13. The court found that the question of similarityto the degree of confusion of designations isa matter of fact and as a general rule it can beallowed by the court without an expert examination.Expertise by virtue of part 1 of article 82 of the APC RFassigned only when for comparisonnotation requires special knowledge.
Limited liability companyfiled a claim with an arbitration court against an openjoint stock company to terminate the violationrights to a trademark, expressed in the applicationit on the packaging of the goods produced.
The defendant objected to the satisfaction of the claim,indicating that he did not use to designate histhe goods of the plaintiff’s trademark, evidencethe reverse was not provided by the plaintiff. https://123helpme.me/argumentative-essay/ Moreover, according toin the defendant’s opinion, he marked thecommodity designation not similar to the extentconfusion with the plaintiff’s trademark.
The defendant filed a petition for appointmentexpertise on the comparison of the appliedthem designations with the plaintiff’s trademark forestablishing a lack of similarity to the extentmixing.
Objections to the satisfaction of the declaredthe petition was motivated by the absencethe need for special knowledge toresolving the issue of similarity to the extentconfusion, therefore, in the opinion of the plaintiff, for hispermission examination is not carried out.
The court, guided by Article 82 of the APC RF,the defendant’s motion was rejected on the followinggrounds.
Expertise is assigned for permission onlyissues arising during the consideration of the case,requiring special knowledge. The question of similarityto the point of confusion of two verbal designations,applied on the goods of the plaintiff and the defendant, maybe allowed by the court from the position of a privatethe consumer and special knowledge is not required.
According to the sixth paragraph of clause 14.4.2 of the Rulesdrawing up, filing and considering an application forregistration of a trademark and markservice (approved by the Order of Rospatent from03/05/2003 N 32) the designation is considered similar untildegree of confusion with another designation, if it isassociated with him in general, despite theirsome differences.
In the opinion of the court, based on the accomplishedthem comparing the designations, as well as on theto the case file of the data heldsociological survey, the danger of confusiondesignations exist in the eyes of the consumer.
Also based on the evidence presentedthe court found that, despite the differences inclasses of goods of the plaintiff and the defendant according toInternational classification of goods and services, theyare homogeneous. At the same time, the court took into accountthe provisions of Article 2 of the Nice Agreement onInternational classification of goods and services forregistration of marks dated 06/15/1957, according to whichthe accepted classification of goods and services does not affectto assess the homogeneity of goods and services.
In view of the foregoing, the court’s stated claimsatisfied.
14. The court is not entitled to recover compensationfor violation of trademark rights in the amount,below the minimum set in clause 4article 46 of the Law of the Russian Federation "Ontrademarks, service marks andappellations of origin ".
Closed joint stock company applied toarbitration court with a claim against the company withlimited liability to paycompensation in the amount of 100,000 rubles.
The claim is motivated by the fact that the defendant,using the plaintiff’s trademark, markedproducts manufactured by him. However,since the violation was one-off and, bythe plaintiff’s opinion did not entail significantinfringement of his rights, requirements to terminateillegal use of a trademark is notclaimed compensation was claimed for the minimumamount – 100,000 rubles.
By the decision of the arbitral tribunal, left withoutchanges by a court order of appealinstance, the claim is satisfied.
In the cassation appeal, the defendant asked to changeadopted in the case of judicial acts in terms of recoverycompensation in the amount of 100,000 rubles and accept a newjudicial act on the recovery of compensation in the amount of 1000 rubles.
The defendant believes: the amount recovered from himcompensation by its legal nature isforfeit; the court had to assess the proportionalitythe amount of compensation and the violation committed andreduce the amount of compensation to be recovered by virtue of Article 333 of the Civil Code of the Russian Federation.
The court left the cassation appeal withoutsatisfaction by indicating the following.
Established in paragraph 4 of Article 46 of the LawOf the Russian Federation "On Trademarks,service marks and names of placesorigin of goods "(hereinafter – the Law ontrademarks) measure of responsibilityapplies at the option of the plaintiff instead of redresslosses. The claim for payment of compensation couldbe satisfied with evidenceunauthorized use of commoditysign, that is, the fact of an offense. The sizecompensation is determined by the court based onspecific circumstances of the case, includingthe nature of the violation, the period of illegaluse, possible damages.
With reference to the provisions of article333 of the Civil Code of the Russian Federation, the court does not have the right to reduce the sizethe amount of compensation recovered is lowerthe minimum specified in paragraph 4 of Article 46Trademark Law becausethe obligation of the infringer of exclusive rights topayment of compensation instead of damagesis not a forfeit. Article333 of the Civil Code of the Russian Federation cannot be applied by analogy,since by virtue of paragraph 1Article 6 of the Civil Code of the Russian Federation, the analogy of the law is applied inif the relevant relationship is notregulated by law orby agreement of the parties and there is no applicable toit is the custom of business turnover. In this casethere is a special regulation – whenassessing the proportionality of the violation committed andresponsibility for this is given to the courtthe ability to determine a specific amountcompensation within the limits established by law -from 1,000 to 50,000 times the minimum wage.
15. The legal entity that usedtrademark without the permission of the copyright holder,may be involved in administrativeliability under article 14.10 of the CodeOf the Russian Federation on administrativeoffenses for the import of markedtrademark of goods on the territory of the RussianFederation and in the event that it did not know thatthe corresponding designation is registered inas a trademark, because usingdesignation, it had to check,whether he is granted legal protection inRussian Federation.
The customs authority appealed to the arbitration court withapplication for the involvement of a company withlimited liability toadministrative responsibility,provided for in article14.10 of the Code of the Russian Federation onadministrative offenses (hereinafter – the Code of Administrative OffensesRF) for illegal use of someone else’s productsign.
As follows from the materials of the case, duringimplementation of customs control of information,contained in the cargo customs declaration,the customs authority found a violationsociety of exclusive rights of legal entities(rightholders) as a result of import tothe territory of the Russian Federation of clothing withtrademarks without a conclusion withby the copyright holders of the license agreement.
Based on the results of the customs check,act of customs inspection of goods, protocolseizure of things and the protocol on administrativean offense on the basis of which the customsthe body sent an application to the arbitration court.
Limited liability companyagainst satisfaction of the stated demandobjected, referring to the absence in hisactions of the administrativeoffenses: objective sideabsent, since society is notmanufacturer of imported goods, trademark onthe product has not been applied; subjective sideabsent, since the fault of society is notinstalled.
According to article 14.10 of the Administrative CodeRF illegal use of someone else’s commoditymark entails the imposition of an administrative finewith confiscation of items containing illegalreproduction of a trademark.
Determining which actions to takeare recognized as illegal use of commoditymark, contained in article 4 of the Law on Trademarkssigns. In accordance with part 2 of the specifiedarticles import into the territory of the Russian Federationis an element of the introduction of goods intocivil circulation on the territory of the RussianFederation and is an independentviolation of the rights of the owner of the trademark.
Society does not deny that it imported goods,trademarked, without consentcopyright holder. Therefore, societyhas taken actions constituting an objectiveside of the offense.
The society’s argument about the absence of its fault inthe commission of an offense by the court was rejected bythe following reasons.
By virtue of part 2 of article 2.1Of the Code of Administrative Offenses of the Russian Federation, a legal entity is found guilty ofcommitting an administrative offense,if it is established that he hadthe opportunity to comply with the rules and regulations, forviolation of which the Code of Administrative Offenses of the Russian Federation or the law of the subjectThe Russian Federation providesadministrative responsibility, but giventhe person did not take all measures in their poweron their observance.
Consequently, the court found thatliability of a legal entity for committingan offense under Article 14.10 of the Code of Administrative Offenses of the Russian Federation,occurs, including if the person has usedsomeone else’s trademark without checking,whether he is granted legal protection inRussian Federation.
In view of the foregoing, the court’s stated claimsatisfied.
IV. Right to trade names
16. By virtue of the Regulations on the company,approved by the Decree of the Central Executive Committee of the USSR and the Council of People’s Commissars of the USSRfrom 22.06.1927 and acting in part, notcontrary to the Civil Code of the Russian Federation, it is illegalusing not only the identical, but alsoof a similar brand name by thirdby persons.
Limited liability companyURAL Sugar applied to the arbitration court witha claim for a ban to a limited companyresponsibility "Ural – Sugar 1"use confusingly similarcompany name.
Defendant against satisfaction of claimsobjected, believing that OOO URALSugar "did not register its brand namename as required by paragraph twoclause 4 of Article 54 of the Civil Code of the Russian Federation, as well as that corporatedefendant’s name is not identicalthe company name of the plaintiff.