of April 23, 2019 No. 10
About application of part four of the Civil code of the Russian Federation
For the purpose of ensuring the correct and uniform permission with courts of disputes on protection and about protection of the intellectual rights the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations.
1. Legal regulation of the relations in the sphere of intellectual property in the Russian Federation is performed according to the Constitution of the Russian Federation, the conventional principles and rules of international law and international treaties of the Russian Federation which are according to part 4 of article 15 of the Constitution of the Russian Federation component of system of law of the Russian Federation, the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), other laws and other legal acts on the intellectual rights.
In the sphere of intellectual property, in particular, are among international treaties of the Russian Federation:
The Bern convention on protection literary and works of art of September 9, 1886 - became effective for the Russian Federation on March 13, 1995;
The world convention on copyright of September 6, 1952 - became effective for the Russian Federation on March 9, 1995;
The convention on distribution of the signals bearing programs transmitted via satellites of May 21, 1974 - became effective for the USSR on January 20, 1989;
The agreement of World Intellectual Property Organization on copyright of December 20, 1996 - became effective for the Russian Federation on February 5, 2009;
The international convention about protection of the rights of contractors, manufacturers of soundtracks and the broadcasting organizations of October 26, 1961 - became effective for the Russian Federation on May 26, 2003;
The Marrakesh contract on simplification of access for blind people and persons with violations of sight or other limited capabilities to perceive printing information to the published works of June 27, 2013 - became effective for the Russian Federation on May 8, 2018;
The convention on protection of interests of producers of soundtracks from illegal reproduction of their soundtracks of October 29, 1971 - became effective for the Russian Federation on March 13, 1995;
The agreement of World Intellectual Property Organization on execution and soundtracks of December 20, 1996 - became effective for the Russian Federation on February 5, 2009;
The Parisian convention on protection of industrial property of March 20, 1883 (further - the Parisian convention) - became effective for the USSR on July 1, 1965;
The Lokarnsky agreement establishing the international classification of industrial designs of October 8, 1968 - became effective for the USSR on December 15, 1972;
The agreement on patent cooperation of June 19, 1970 - became effective for the USSR on March 29, 1978;
The Strasbourg agreement on the International patent classification of March 24, 1971 - became effective for the USSR on October 3, 1976;
The Budapest agreement on the international recognition of deposition of microorganisms for the purposes of the patent procedure of April 28, 1977 - became effective for the USSR on April 22, 1981;
The Eurasian patent convention of September 9, 1994 - became effective for the Russian Federation on September 27, 1995;
The Geneva act of the Hague agreement on the international registration of industrial designs of July 2, 1999 - became effective for the Russian Federation on February 28, 2018;
The agreement on the patent law of June 1, 2000 - became effective for the Russian Federation on August 12, 2009;
The international convention on protection of new plant varieties of December 2, 1961 - became effective for the Russian Federation on April 24, 1998;
The Madrid agreement on the international registration of signs of April 14, 1891 - became effective for the USSR on July 1, 1976 and the Protocol to the Madrid agreement on the international registration of signs of June 27, 1989 - became effective for the Russian Federation on June 10, 1997;
The Nizzky agreement on the International classification of goods and services for registration of signs of June 15, 1957 - became effective for the Russian Federation on December 25, 1991;
The Nayrobsky agreement on protection of the Olympic symbol of September 26, 1981 - became effective for the USSR on April 17, 1986;
The Singapore agreement on the laws according to trademarks of March 27, 2006 - became effective for the Russian Federation on December 18, 2009;
The convention establishing World Intellectual Property Organization of July 14, 1967 - became effective for the USSR on June 24, 1970;
The agreement on trade aspects of intellectual property rights (TRIPS) of April 15, 1994 (further - the Agreement on trade aspects of intellectual property rights) - became effective for the Russian Federation on August 22, 2012 and the Protocol on change of the Agreement on trade aspects of intellectual property rights (TRIPS) of December 6, 2005 - became effective for the Russian Federation on September 22, 2017;
The agreement on the Eurasian Economic Union of May 29, 2014 - became effective for the Russian Federation on January 1, 2015.
2. To the relations connected with origin, transition and provision, the termination, implementation, protection of the rights to results of intellectual activities and the means of individualization of legal entities, goods, works, services and the companies equated to them (further - means of individualization), the Civil Codes of the Russian Federation are subject to application of provision of parts one, the second, third if other is directly not provided by part four of the Civil Code of the Russian Federation and if their application does not contradict being of the relations settled by this part of the Civil Code of the Russian Federation.
3. According to provisions of part 3 of article 22 of the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation) courts of law consider the cases connected using part four of the Civil Code of the Russian Federation, except as specified, when cases of this category according to the Federal constitutional Law and the Federal Laws are considered by Arbitration Courts.
In particular, the these cases, by the general rule, are subject to consideration in court of law if the party in dispute is the citizen who does not have the status of the individual entrepreneur or the citizen though having the status of the individual entrepreneur, but proceedings are initiated not in connection with implementation of business activity by it (Item 1 of part 1 of article 22 CCP of the Russian Federation).
Disputes on the one who is the author of result of intellectual activities are considered by courts of law as not connected with implementation of business and other economic activity, except for disputes on authorship of inventions, useful models, industrial designs, selection achievements and know-how (know-how) which taking into account the subitem 5 of Item 1, of paragraph two of Item 2 of Article 1398, of Chapters 73 and 75 of the Civil Code of the Russian Federation, Item 6 of part 6 of Article 27, of the paragraph of the fifth Item 2 of part 4 of Article 34 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation) are jurisdictional to Intellectual Property Rights Court as Trial Court.
Disputes on determination of amount of remuneration of authors (coauthors) are carried to competence of the courts of the general jurisdiction.
4. The court considering disputes on protection of the intellectual rights, including cases on violations of the intellectual rights to results of intellectual activities and on names of places of goods origin about violation of the right of prezhdepolzovaniye and right of postuse, disputes on the order of exclusive right, is determined proceeding from the subject list of disputing parties and nature of disputable legal relationship if other is not established by the law.
Other is established for cases on disputes on protection of the intellectual rights with participation of the organizations exercising collective control of copyright and related rights which owing to Item 6 of part 6 of Article of 27 AIC of the Russian Federation are subject to consideration by Arbitration Courts irrespective of such organization appears in court on behalf of owners (the legal entities, individual entrepreneurs or citizens who are not individual entrepreneurs) or on its own behalf.
Irrespective of the subject list of persons participating in case in Arbitration Courts disputes on means of individualization are subject to consideration (except for disputes on names of places of goods origin). The disputes connected using the consumer protection law, disputes on inheritance and disputes on the Section of common property of spouses do not belong to such disputes, in particular.
5. The civil cases arising from the relations on creation and use of results of intellectual activities, carried to competence of the courts of the general jurisdiction are considered by district court as Trial Court, except for put, the stipulated in Article 26 CCP of the Russian Federation. Cases of this category are not jurisdictional to the magistrate judge (Item 5 of part 1 of article 23 CCP of the Russian Federation).
6. The cases connected with protection of the author's and (or) related rights (except the rights to the photographic works and works received by the methods similar to the photo) in information and telecommunication networks, including in Internet networks (including cases on claims with requirements about application of methods of protection and the measures of responsibility provided by Articles 1250, of 1252, of 1253, 1301 and 1311 Civil Codes of the Russian Federation) on which for date of submission of the action for declaration are accepted by the Moscow city court and are not cancelled provisional interim measures (article 144.1 CCP of the Russian Federation), are considered by the Moscow city court as Trial Court irrespective of the subject list of participants of disputable legal relationship, and also from nature of dispute (part 3 of article 26 CCP of the Russian Federation, article of 28 AIC of the Russian Federation).
If in connection with violation of the author's and (or) related rights in information and telecommunication networks, including in Internet network, provisional interim measures the Moscow city court are cancelled or were not accepted, the court which should consider such case is determined by general rules.
If person took a legal action the general jurisdiction with the claim in connection with violation of the author's and (or) related rights in information and telecommunication networks, including in Internet network, and did not report to the court which accepted such claim to the production about acceptance of provisional interim measures by the Moscow city court which for date of submission of the action for declaration were not cancelled, case is subject to transfer for consideration of the Moscow city court based on Item 3 of part 2 of article 33 CCP of the Russian Federation. If person appealed with such claim to Arbitration Court, the action for declaration is subject to leaving without consideration in relation to rules of Item of 1 part of 1 Article of 148 AIC of the Russian Federation. After entry into force of the Federal Law of November 28, 2018 "About modification of separate legal acts of the Russian Federation" (further - the Federal Law No. 451-FZ) the Arbitration Court in the specified case submits No. 451-FZ the case to the Moscow city court based on part 4 Articles of 39 AIC of the Russian Federation. Legal costs at the same time are collected from the claimant (part 4 of article 1 CCP of the Russian Federation, article of 111 AIC of the Russian Federation).
After the beginning of activities of Appeal Courts of the general jurisdiction and courts of cassation of the general jurisdiction review in appeal and cassation procedure for the court decrees of the Moscow city court issued for this category is performed according to the First Appeal Court of the general jurisdiction and the Second court of cassation of the general jurisdiction (articles 19.1 and 19.2 of the Federal constitutional Law of December 31, 1996 No. 1-FKZ "About judicial system of the Russian Federation", articles 23.1 and 23.9 of the Federal constitutional Law of February 7, 2011 No. 1-FKZ "About courts of law").
7. Except for put the cases on disputes on protection of the intellectual rights considered by Arbitration Courts, cognizable to Intellectual Property Rights Court as Trial Court, are subject to consideration of subjects of the Russian Federation by Arbitration Courts as Trial Courts taking into account general rules of cognizance of cases (Article of 34 AIC of the Russian Federation).
Review according to the procedure of appeal production of court resolutions of Arbitration Courts of subjects of the Russian Federation on such cases is performed by Arbitration Appeal Courts.
Review according to the procedure of cassation production of court resolutions of Arbitration Courts of subjects of the Russian Federation and Arbitration Appeal Courts on such cases is performed by Intellectual Property Rights Court. In the same procedure writs of appeal on cases in which one of the declared requirements concerned protection of the intellectual rights are considered.
Writs of appeal are submitted about such court resolutions in general procedure, stipulated in Article 275 AIC of the Russian Federation. At the same time the Arbitration Court which made the decision on the case of protection of the intellectual rights shall send the writ of appeal together with case to Intellectual Property Rights Court regardless of what Arbitration Court is specified by the applicant as court in which the writ of appeal is submitted (Item of 1 part 2 Articles of 277 AIC of the Russian Federation).
Review according to the procedure of cassation production of court resolutions on insolvency matters (bankruptcy), to tax disputes, and also on the cases considered by rules of Chapter 28.1 of the AIC of the Russian Federation even if during their consideration these or those questions of protection of the intellectual rights were considered, is performed in general procedure by Arbitration Courts of districts.
If according to the decision of Arbitration Court which is subject to revision in cassation procedure by Intellectual Property Rights Court, the writ of appeal together with case arrived in other Arbitration Court of cassation instance, such Arbitration Court in relation to provisions of Article of 39 AIC of the Russian Federation transfers her on cognizance to Intellectual Property Rights Court.
In case of receipt in Intellectual Property Rights Court of the writ of appeal together with case on the decision which is subject to revision in cassation procedure by Arbitration Court of the district, the Intellectual Property Rights Court transfers it to the relevant court on cognizance in relation to provisions of Article of 39 AIC of the Russian Federation.
Consideration by Intellectual Property Rights Court as court of cassation instance of cases on protection of the intellectual rights considered by Arbitration Courts of subjects of the Russian Federation, Arbitration Appeal Courts is performed by the joint list of judges (part of 1 Article of 284 AIC of the Russian Federation), but not presidium of Intellectual Property Rights Court.
8. Owing to Items 1 and 2 of article 43.4 of the Federal constitutional Law of April 28, 1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation" (further - the Law on Arbitration Courts), Item 6 of part 6 of Article 27, Articles of 29 AIC of the Russian Federation are considered by Arbitration Courts the cases specified regarding 4 Articles of 34 AIC of the Russian Federation irrespective of the subject list of participants of disputable legal relationship. The corresponding cases are jurisdictional to Intellectual Property Rights Court as Trial Court.
Taking into account provisions of the paragraph of the third Item 2 parts 4 Articles of 34 AIC of the Russian Federation, Item 15 of Article 4 and article 14.4 of the Federal Law of July 26, 2006 No. 135-FZ "About protection of the competition" (further - the Federal Law "About Protection of the Competition") the Intellectual Property Rights Court considers cases on contest of decisions of federal (territorial) antimonopoly authority on recognition by unfair competition of the actions connected with acquisition of right of exclusive right at the expense of individualization.
Proceeding from part 8 of Article 44, of article 48 of the Federal law "About Protection of the Competition" to the same court cases on contest of decisions of antimonopoly authorities on refusal in excitement and on diversion on recognition by unfair competition of the actions connected with acquisition of right of exclusive right at the expense of individualization are jurisdictional.
Cases on disputes on recognition by court the act of unfair competition of the actions of the owner connected with provision of legal protection to the trademark are also jurisdictional to Intellectual Property Rights Court as Trial Court based on Item 2 parts 4 Articles of 34 AIC of the Russian Federation as the judgment on such case is owing to the subitem 7 of Item 2 of article 1512 Civil Code of the Russian Federation the recognition basis invalid provisions of legal protection to the trademark.
9. In sense of Item 6 of part 6 of Article 27, of Article of 29 AIC of the Russian Federation, Items 1 and 2 of article 43.4 of the Law on Arbitration Courts in their interrelation with provisions of article 1069 Civil Code of the Russian Federation the Intellectual Property Rights Court as Trial Court considers cases on disputes on indemnification, caused acknowledged not corresponding to other regulatory legal act having big legal force, and not acting completely or in part:
regulatory legal acts of authorities in the sphere of patent laws and the rights to selection achievements, the rights to topology of integrated chips, the rights to know-how (know-how), the rights to means of individualization, right to use of results of intellectual activities as a part of single technology;
the acts of federal executive bodies in the sphere of patent laws and the rights to selection achievements, the rights to topology of integrated chips, the rights to know-how (know-how), the rights to means of individualization, right to use of results of intellectual activities as a part of single technology which are containing explanations of the legislation and having normative properties;
substandard legal acts, decisions and actions (failure to act) of federal executive body on intellectual property, federal executive body on selection achievements and their officials, the bodies authorized by the Government of the Russian Federation to consider requests for patent grant for confidential inventions.
The same court considers cases on disputes on indemnification, the federal (territorial) antimonopoly authority caused by illegal decisions on recognition by unfair competition of the actions connected with acquisition of right of exclusive right at the expense of individualization.
The specified cases are jurisdictional to Intellectual Property Rights Court as in case the requirement about indemnification is declared in court along with the requirement about contest of the relevant act and if the requirement about indemnification is declared separately.
10. Regulations on competence of Intellectual Property Rights Court as Trial Court are special in relation to Item provisions 2 parts of 1 Article 29, of part of 1 Article 197, of part of 1 Article 198, speak rapidly 4 Articles 200, of part 2 Articles of 201 AIC of the Russian Federation. By hearing of cases, carried to maintaining Intellectual Property Rights Court, absence at the subject of dispute of interest in entrepreneurial or other economic sphere with other interest protected by the law does not attract refusal in protection provision.
If in one statement it is connected several requirements connected among themselves on the bases of origin or the produced evidence (part of 1 Article of 130 AIC of the Russian Federation), one of which is subject to consideration by Intellectual Property Rights Court, and another - other Arbitration Court of the first instance, case is considered by Intellectual Property Rights Court.
11. After entry into force of the Federal Law No. 451-FZ in case of receipt as Trial Court of the action for declaration, the administrative action for declaration, the statement on case with cognizance abuse of regulations such statement returns to court, Arbitration Court, Intellectual Property Rights Court to the applicant (Item 2 of part 1 of article 135 CCP of the Russian Federation, Item 2 of part 1 of article 129 of the Code of administrative legal proceedings of the Russian Federation (further - KAS Russian Federation), Item of 1 part of 1 Article of 129 AIC of the Russian Federation). If the specified circumstance becomes clear after adoption of the action for declaration, the administrative action for declaration, the statement to production, the case is submitted on cognizance by rules, stipulated in Item 3 parts 2 and part 2.1 of article 33 CCP of the Russian Federation, Item 2 of part 2 and part 2.1 of article 27 KAS Russian Federation, Item 3 of part 2 and part 4 Articles of 39 AIC of the Russian Federation.
12. The application for early termination of legal protection of the trademark owing to its non-use in case of excitement concerning the owner of case on bankruptcy is considered in the case of bankruptcy.
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