Russian IP protection is a topic that is frequently covered in the media today. However, based on what is written, it is clear that Russia tends to disregard any IP rights that may exist.
In the interim, infringement continues to be a problem, and IP life continues as usual. Owners of intellectual property must pick which avenue to pursue to preserve their rights in this case and what is the best to assert. One of the cornerstones of intellectual property is enforcement.
Articles 1248, 1250, 1251, 1252, and numerous others in Part IV of the Civil Code provide general guidelines for how IP rights can be protected in the event of an infringement.
In essence, the legislation stipulates that violations may be prevented and compensation or damages may be demanded. These do not have analogs in Russian legalese. When you file a claim for damages, you must painstakingly substantiate the amount of money you lost, whether it was a direct loss or a consequential loss. Experience has shown us that this is only sometimes a simple task. In theory, compensation does not require any evidence. According to Article 1252(3), the right owner may demand compensation rather than damages. If the existence of the infringement is established, compensation may be ordered. As a result, as mentioned earlier, the compensation may exceed the calculated damages. It is strongly advised that any proof of damages be presented to the court; otherwise, the amount of compensation could be reduced to just 10,000 rubles, even though the highest amount that can be claimed is five million.
In addition, the law offers two options for a specific monetary demand. The owner of the intellectual property (IP) may seek damages in an amount equal to double the cost of imitation goods or twice the price of a license charged under identical conditions for the legitimate use of the IP in question. The court cannot change the compensation computation technique at its discretion.
The rule appears straightforward at first glance, but conflict participants frequently run into circumstances that make resolution challenging. So much so that the Russian Federation’s Supreme Court decided to devote a special release to the details of making a compensation claim.
In its Decree No. 10 from April 2019, it analyzed various dispute scenarios, outlined its findings, and provided details on the terms that the legislation omitted. As a result, the plaintiff must present a calculation of the claimed amount of money and the grounds for that monetary claim as required by the Commercial Procedural Code whether he claims 1) a double cost of the right to use IP (the cost of a license) or 2) a double cost of counterfeit goods. Additionally, he must offer proof of the price of the right to use (1) or the quantity and cost of the counterfeit items (2). If the plaintiff cannot do so, he may ask the court to order testimony from the defendant or other parties.
It is feasible to collect pertinent information from sources, including those in other nations, to verify computations and the cost of the contested IP.
The amount of compensation will be determined based on the cost of the projected sale of the counterfeit goods if the plaintiff seeks payment for double the cost of using the IP. The wholesale price shall be considered if the infringer sells the items based on wholesale contracts.
The complainant may seek damages between 10,000 and 5,000,000 rubles, as was mentioned. The amount may be lowered at the court’s discretion. Decree No. 10 nonetheless stipulated that the court’s discretion should be grounded upon the evidence. The court must assess the infringement’s circumstances concerning the relevant subject matter. Examples include how well-known it is, whether the trademark was applied to the goods by the infringer or by a third party, the length of the illegal use, whether it was repeated, the likelihood that the IP owner will suffer harm, and whether the infringing use constitutes a sizable portion of the infringer’s business. The court must decide using the standards of justice and fairness and determine whether the awarded damages are appropriate in comparison to the harm caused by the violation.
When an IP owner has multiple interconnected subject matters, such as a copyright and a trademark and an appellation of origin or a trademark and a design, compensation should be given for each IP separately.The Supreme Court’s explanation seems extensive, but the IP owners’ ability to use this alternative makes it simpler for them to seek and receive justice.