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

of October 8, 2012 No. 59

About some questions arising in connection with adoption of the Federal Law of 08.12.2011 No. 422-FZ "About modification of separate legal acts of the Russian Federation in connection with creation in system of Arbitration Courts of Intellectual Property Rights Court"

Due to the questions arising at Arbitration Courts in connection with adoption of the Federal Law of 08.12.2011 N 422-FZ "About modification of separate legal acts of the Russian Federation in connection with creation in system of Arbitration Courts of Intellectual Property Rights Court" (further - the Law), and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

1. Arbitration Courts need to consider that from the effective date the Law, that is from 08:12. 2011, are also carried to jurisdiction of Arbitration Courts:

cases on early termination of legal protection of the trademark owing to its non-use which according to Item 1 of Article 1486 of the Civil code of the Russian Federation are considered only by Arbitration Courts;

cases on disputes on protection of the intellectual rights with participation of the organizations exercising collective control of copyright and related rights which proceeding from Item 4.2 of part 1 of Article 33 of the Arbitral Procedure Code of the Russian Federation (further - the 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, and from nature of disputable legal relationship.

2. From the effective date the Law according to Articles 55. 1, 87.1 AIC of the Russian Federation any Arbitration Court for the purpose of receipt of explanations, consultations and clarification of professional opinion of persons having theoretical and practical knowledge on the substance of the dispute resolved by Arbitration Court can involve the expert.

As specialists any persons having knowledge necessary for Arbitration Court can be involved.

At the same time owing to paragraph two of part 1 of Article 87.1 of the AIC of the Russian Federation in addition to other as specialists the advisers of the office of specialized Arbitration Court who are qualified of the corresponding specialization of court can be also attracted. At the same time such specialists can be attracted only by that specialized Arbitration Court in which office they consist.

3. According to provisions of part 2 of Article 55. 1, parts 1 of Article 87.1 of the AIC of the Russian Federation the expert can be involved in process only at the initiative of Arbitration Court. At the same time the Arbitration Court can consider opinion of persons participating in case.

4. Owing to parts 2 and 3 of Article 55.1 of the AIC of the Russian Federation the specialist's obligation in arbitral procedure consists in appearance in court for participation in judicial session during which he answers the questions raised before it, gives consultations and explanations. According to the paragraph of part 2 of Article 87.1 of the AIC of the Russian Federation consultation is given the second by the specialist in oral form without carrying out the special researches appointed based on the arbitration court ruling.

During judicial session the specialist has the right to get acquainted with case papers.

If the materials and explanations provided to the specialist are not enough for the answer to the questions posed, giving consultations and explanations, the specialist has the right to declare in judicial session the petition for representation of additional materials to it. Such petition is subject to consideration by rules, stipulated in Article 159 AIC of the Russian Federation.

In case of satisfaction of the petition the Arbitration Court will request from the corresponding materials at person at whom they are (in relation to provisions of the paragraph of third of part 4 Articles of 66 AIC of the Russian Federation), and postpones legal proceedings (Article of 158 AIC of the Russian Federation).

5. According to part 2 Articles of 107 AIC of the Russian Federation specialists earn reward for the work performed by them at the request of Arbitration Court if they are not advisers of the office of specialized Arbitration Court.

Considering that the specialist is attracted only at the initiative of Arbitration Court, proceeding from part paragraph two sense 2 Articles of 107 AIC of the Russian Federation in relation to the paragraph to the second part 3 of this Article amount of remuneration to the specialist who is not the adviser of the office of specialized Arbitration Court is determined by court by the agreement with the specialist.

At the same time owing to part 3 Articles of 109 AIC of the Russian Federation fee of such specialist recruited by Arbitration Court in arbitral procedure payment of daily allowance to it and compensation of the expenses incurred by it in connection with appearance in Arbitration Court is made at the expense of means of the federal budget.

 

Chairman of the Supreme Arbitration Court of the Russian Federation

A. A. Ivanov

Secretary Plenuma of the Supreme Arbitration Court of the Russian Federation

T. V. Zavyalova

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