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Inheritance of Exclusive Right to Subject-Matters of Intellectual Property and Copyrights.

April 11, 2017

As it is known, Part 3 of the Civil Code does not contain any special provisions concerning the description or explanation of the order of inheriting intellectual property or copyrights. However, the answers to all questions that interest us on this matter can be found in Article 4 of the Civil Code of the Russian Federation, which, among other things, specifies the algorithm for inheriting exclusive rights to particular subject-matters of intellectual property.

Article 1225 of the Civil Code of the Russian Federation contains an exhaustive list of the results of intellectual activity and the similar to them means of individualization of legal entities, goods, works, services and enterprises which are provided with the legal protection (intellectual property). Inheriting exclusive rights to the subject-matters of intellectual property occurs by the standard rules of the conveyance of the property rights. However, it has some peculiarities.

The Russian legislation stipulates the division of rights to the results of intellectual work by property and non-property rights. In the second case, this means, as a rule, the inalienable and perpetually protected personal copyright. However, there is one interesting nuance here: under certain conditions, the author can still propagate a part of his non-property rights. This is possible when it comes to the publication or disclosure of a previously unknown or unfinished works of art, which for one reason or another has not become a broad audience property during the author's lifetime. In this case, if the will of the deceased person is expressed in writing clearly (in any form, whether in a testament, memoirs, letters or diaries), then his legitimate heirs have the right to publish such a work of art. At the same time, they shall not in any way move into the category of the authors of the work of art, but execute the will of the deceased person solely, up to the point that they have no right to introduce any changes into the text of the work of art. The only thing that is available to them is the change in the genre and form of the work of art, if this does not affect its content. For example, it is quite a common practice to transform a narrative or story into a script for a documentary or feature film, or a theatrical production.

The essential remark concerning the period of validity of the rights vested in the heirs: they are limited to 70 years after the author's death. Truly speaking, the count here does not begin with the date of the fact death, but from the first day following the year of the death of the calendar year.

The inheritance of the exclusive right to a trademark, or some other means of individualization of a legal entity and its activities that are subject to the legal protection, has its own peculiarities that must be taken into account. They arise because the above-mentioned exclusive rights presuppose their use in commercial activities. Consequently, the holders of such exclusive rights can be either legal entities or individual entrepreneurs. Only in this case the inheritance procedure will be quick and painless.

According to Article 1478 of the Civil Code of the Russian Federation, the holder of the exclusive right to a trademark may be a legal entity or an individual entrepreneur.

It is worth analyzing the situation when there are several heirs to the trademark. After obtaining a certificate on the right to inheritance, they can conclude an agreement on the division of the property. The inherited right to shares or a share in the right to the trademark can be propagated to one heir, who has registered as an individual entrepreneur. Additionally, it should be meant that if one of the heirs is a minor, and the agreement is concluded with the surviving parent, the interests of the minor at the conclusion of the transaction shall be represented by the trusteeship and guardianship authorities.

In the case when the heirs avoid concluding an agreement on the division of the property with the heir interested in obtaining the rights to the trademark, who is an individual entrepreneur, the latter has the opportunity to protect his rights by applying to the court with a statement of claim to recognize his exclusive right to the trademark with the payment of monetary compensation to other heirs. The Central District Court of Chita settled the disputed situation (Civil case No. 2-5353/2013) in September 2013 just in such a way.

Exclusive rights to patents for inventions, utility models, industrial designs and the achievements of selective activities can also be inherited, notably not only by a legal entity or individual entrepreneur, but by an individual as well.

In the issue of inheritance of the exclusive right to the subject-matters of intellectual property, it is necessary to take into account that in some cases, there is a transformation of shared property into joint property. That is, the patent holders can own the patent as joint property. Consequently, if the patent is included in the inherited property, the notary shall allocate a share in property for each heir in the certificate for the right to inheritance. However, even if in the certificate for the right to inheritance share property is indicated in respect of the patent, for example: 2/3 is to Ivanova and 1/3 is to Petrov, then further, when registering the conveyance of the right in Rospatent, unequal shares shall be transformed into a join, absolutely equal share (50 to 50 percent). Thus, subsequently, Ivanova with Petrov will own the patent jointly.

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Author of article

Natalya Nazarova

Natalya Nazarova

Agreement’s Lawyer