Law Enforcement in the Field of Intellectual Property in Russia
In November 2002 a major seminar was held in Moscow by the UN/ECE Advisory Group on the Protection and Implementation of Intellectual Property Rights for Investment together with the Russian Patent and Trade Mark Office. The UN/ECE is one of the five regional commissions under the UN responsible for promoting trade and investment into their specific region ( www.unece-ipr.org ). Among those taking parts in the seminar were representatives of the Russian Parliament, the Russian Government, of different ministries, agencies and courts of Russia. Domestic and foreign companies operating in Russia such as Procter & Gamble, Microsoft, Adidas, Philip Morris, Merck, Sharp & Dohme were also strongly represented there.
The seminar was devoted to "Law Enforcement in the Field of Intellectual Property" and the participation of law enforcement agencies of Russia in its work was of primary importance.
During the seminar, extensive reports on the protection of intellectual property in Russia, the TRIPS Agreement and other topics were given. A good deal of these reports and the subsequent discussions were devoted to trade marks, indications of origin of goods and related topics. The seminar coincided with the final discussions on the Trade Marks Bill in the Russian Parliament at that time.
Russia is now preparing for participation in the World Trade Organization; therefore much attention was devoted to the intellectual property problems this will produce. It has been underlined that the liberalizing of foreign and domestic trade after the Soviet era has contributed not only to foreign investments but also to the appearance of cheap and often poor quality goods on the domestic market. Among such goods there are foodstuffs, medicines, toys, shoes, clothes, spare parts for cars, etc. This has necessitated taking additional measures by the Customs Office. The mechanism of Customs control introduced in 1998 provides for a possibility to protect intellectual property by the Customs Office at the time goods cross the Russian frontier from abroad. The process may be initiated by any intellectual property right owner by way of addressing the Customs Office, while submitting necessary documents. Those documents must comprise first of all
- data on the owner of the right; documents certifying his right or a Power of Attorney;
- information on the specifics of the protected subject as well as the period of time during which the assistance of the Customs Office is required;
- description of the goods incorporating the subject of the intellectual property right ( possibly presenting a sample).
As per November 1, 2002 the Register of Intellectual Property Items kept since 1998 in respect of which the assistance of the Customs Office has been required contains some 450 entries, among them 272 trademarks (such as TIDE, FAIRY, HEAD & SHOULDERS, PANTENE PRO-V, PROCTER AND GAMBLE, CLIPPER, BAILEYS, GORDON'S, JOHNNIE WALKER ).
The Code of Administrative Torts, which came into force on July 1, 2002 envisages administrative sanctions for violation of Copyright as well as of Trademark legislation. The Code empowers the Customs Office to set up protocols and to conduct other preliminary procedures before turning the cases over to Courts if the Customs Office detects violations of intellectual property rights in the course of a regular Customs check.
In this field the Customs Office works in close co-operation with other Russian ministries and agencies. A common working group, which includes representatives of the Ministry of the Interior, the Ministry on Anti-Trust Policy, Tax Police and the Patent and Trade Mark Agency has been carrying out its activities since August 2001.
The Ministry on Anti-Trust Policy carries out certain functions in the field of protection against unfair competition. Generally speaking the Anti-Trust Legislation may apply to contractual relations in respect of subjects of intellectual rights if said contracts are aimed at restriction of competition or if unfair competition may result from acquiring, using or violating intellectual property rights. Article 10 of the Anti-Trust Law underlines, that selling goods unlawfully using intellectual property, inter alia trade marks and trade names, constitutes a form of unfair competition.
Anti-Trust Cases in the field of intellectual property may be initiated by the Attorney- General, by commercial or non-commercial organizations or by executive agencies of the Russian Federation or local authorities, which may hold data essential for competition. Petitions submitted to an Anti-Trust authority must be accompanied by documents, testimonies and proofs, enabling it to get appropriate verification. If the Anti-Trust authority states a fact of unfair competition it issues a decree which is enforceable and may be appealed against in a court of law within 3 months.
Apparently good results are achieved if there is close cooperation between different law enforcement authorities. Thus in respect of counterfeiting of sportswear bearing the trade mark "Adidas" over 50 raids by law-enforcement detachments have been conducted in Russia in the period from May 2001 till October 2002. As a result, up to 80,000 items of counterfeited goods bearing the trade mark "Adidas" have been confiscated totaling USD 6,000,000.
In one case cited, law-enforcement officers of the Ministry of the Interior seized 15972 pairs of "Adidas" sporting shoes on January 2002 in Moscow. On November 11, 2002 a court held that the Trade Mark "Adidas" should be removed from all the goods seized.
Regrettably the counterfeiters in such cases are frequently able to deny ownership of the goods seized and sometimes manage to vanish completely.