Lawyer Ozhiganova Irina Aleksandrovna

Protection of infringed intellectual rights

The object of intellectual property rights can be used by the owner at his own discretion for conducting production activities, for full or partial transfer of rights to third parties. Any forms of using someone else's object should be fixed in the form of a contract on alienation of rights or a license agreement. Consequently, exclusive rights are recognized as violated if the following facts are established:

someone else's intellectual property is being used without the permission of the copyright holder (if the patent or security certificate has not expired);

if a violation of the terms of the transfer agreement is established (for example, the invention is used outside the territory specified in the license agreement);

if the copyright holder has not received monetary compensation for the transferred rights, or other payment terms have been violated.

The possibility of intellectual property rights protection in the Russian Federation provides for a set of measures that the author or the rightful owner of the object has the right to use. First of all, protection is carried out by registering and obtaining patents, trademark certificates.

At the registration stage, protection is carried out in the following areas:

setting the priority of rights when registering an application – each subsequent application will be rejected if technical solutions or means of individualization coincide with the previously submitted object;

the possibility to extend the patent to the territory of other states – for this, an application is submitted under the PCT procedure or within the framework of the Eurasian patent.

Protection of intellectual property results in the Russian Federation after registration of rights is carried out in a pre-trial or judicial procedure. Let's consider what options are available to the copyright holder if he is faced with a violation of his legitimate interests.

Non-judicial options for the protection of intellectual property rights

The protection of a company's intellectual property is not necessarily accompanied by an appeal to the court. The legislation of the Russian Federation allows you to use the following options:

fixing the procedure for using other people's rights in the form of contracts (for example, determining the territory of patent use in the provisions of the license agreement);

sending a request to the violator for the immediate termination of unauthorized use of other people's rights;

appeal to law enforcement agencies to bring to criminal or administrative responsibility.

Violations in the field of patent rights may entail administrative or criminal liability. To impose sanctions under Article 7.12 of the Administrative Code of the Russian Federation, the amount of damage does not matter, and the punishment will follow not only for the illegal use of other people's rights, but also for disclosing the essence of a unique technical solution, attribution of authorship, etc. The maximum possible punishment under this article threatens the enterprise, the fine can reach 40 thousand rubles.

Criminal sanctions will follow under Article 147 of the Criminal Code of the Russian Federation only if a major damage to the copyright holder occurs. The maximum amount of punishment is threatened for patent or copyright infringement committed by a group of persons. The sentence can set a prison sentence of up to 5 years.

If a dispute arises about the priority of applications or about the termination of legal protection, you can contact the Rospatent service or the Russian Copyright Agency (depending on the nature of the dispute). Also, these agencies will be involved as a participant in the case when applying to the courts.

Other protection options may be used for special intellectual and industrial property objects. For example, the secret of production (know-how) is not subject to registration with the grant of a patent. The organization itself must approve the rules of access to confidential and secret information, introduce a regime of official secrecy and appoint responsible persons. Only if these requirements are met, it is possible to make claims against third parties who have gained access to classified information without legal grounds.

Judicial protection procedure

If the legal requirement to stop violations of exclusive rights is not met, the rights holder's interests will be defended in court. In Russia, patent and copyright protection is possible through courts of general jurisdiction, arbitration, and the Intellectual Property Rights Court, depending on the nature of violations. Let's highlight the key nuances that need to be taken into account when applying to the court:

the author or the rightholder of the object, as well as the person who legally obtained the rights under the license agreement, can file a lawsuit;

the plaintiff can conduct cases personally, or through representatives; a lawyer or lawyer, as well as a patent attorney, can act as a representative;

within the framework of the judicial process, it is possible to recover compensation in a fixed amount, or to demand compensation for damages caused by the violation;

following the results of the trial, all copies of products released in violation of exclusive rights will be confiscated and destroyed.

If the copyright holder decides to recover damages, he needs not only to prove the fact of violation of rights, but also to submit a calculation of claims. When collecting compensation in a fixed amount, this is not required, it is only necessary to prove the fact of the offense. The amount of compensation will be determined by the court according to one of three options:

in a fixed amount ranging from 10 thousand rubles to 5 million rubles. (the court will assign the amount of payment based on the nature of the violation);

in double the amount of the cost of counterfeit products (an examination will be required to calculate the price of the claim);

in double the amount of the value of the exclusive rights, the expert will also make an assessment of the value based on market prices for the use of similar rights.

The simplest option would be to collect compensation in a fixed amount. If the protection of interests in court takes place through representation, the costs of providing legal assistance will be collected from the violator.

A lawsuit may be initiated to invalidate a patent and revoke registration in the registry. In this case, representatives of the Rospatent service are involved in the case, who submit a reasoned conclusion on the merits of the dispute. One of the cases when the legal protection regime is subject to cancellation is the non-use of the trademark for 3 years after the issuance of the certificate.

After the issuance of a judicial act, the copyright holder has the right to demand its publication if the document contains proof of authorship. This option is an additional way of protection if the subject of the dispute was the contestation of registered rights.