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Securing the claim in the cases on the copyright violation

Dec. 19, 2018

In case of the copyright violation the holder has every ground to seek protection of the legitimate interests
in the court. At the same time, it is especially important to file a petition for the court to undertake the
measures to secure the claim. The decision made in time and the implementation of the relevant measures
will allow facilitating the check of the objects for the presence of the signs of counterfeitness and
avoiding in future the impossibility of executing the court decision, which has entered into force.
The general rules and the procedure for applying the interim measures in the civil legal proceedings
The general rules for securing claims in the civil legal proceedings are set out in Chapter 13 of the Civil
Procedural Code of the Russian Federation and in Chapter 8 of the Arbitration Procedural Code of the
Russian Federation. The interim measures are the urgent temporary actions undertaken by the court upon
the plaintiff’s application, and in individual cases upon the defendant’s application, aimed at preserving
the possibility of applying the sanctions against the offenders and at protecting the interests of the
applicant. Article 140 of the Civil Procedural Code of the Russian Federation and Article 91 of the
Arbitration Procedural Code of the Russian Federation contain a list of the interim measures that are used
in the civil legal proceedings. These lists are open; therefore the court can make a decision to appoint the
measures that are not specified in the legal norms. The main condition for determining the interim
measures is the use of the principle of proportionality of the measures applied and the claims made by the
plaintiff.
The interim measures are used only when the claim has already been brought, and the judicial
proceedings have been initiated. The person is entitled to file a request on the application of the interim
measures at any stage of the process. The request is made in the form of a petition, which is included in
the claim or it is filed in the form of a separate application. For the measures undertaken to secure the
claim to be effective, it is necessary to make a decision promptly and to ensure confidentiality at the stage
of the consideration of the petition in order to prevent the possible unfair actions of the defendant for
destroying or moving the objects in respect of which the corresponding measures are planned to be
applied. For these reasons, the court considers the request without notifying the persons participating in
the case and within the shortest possible time. When making a positive decision, the judicial authority
makes a decision, this is reported to the body authorized to perform the relevant action. The plaintiff is
given an enforcement order, and the copy of the court decision is sent to the defendant.
The peculiarities of the interim measures applied in the copyright
The provisions describing the peculiarities of the interim measures applied to the disputes in respect of
the copyright are contained in Paragraph 2 of Article 1252, Article 1302 of the Civil Code of the Russian
Federation, Paragraph 3.1 of Article 140 of the Civil Procedural Code of the Russian Federation and
Article 144.1 of the Civil Procedural Code of the Russian Federation. The actions specified in the norms,
which are to secure the claims can be divided into three groups:
― the ones aimed at prohibiting particular activities (the manufacture, sale, distribution, etc.);
― the ones connected with the arrest of the material media, the copies of the works, the materials and the
equipment used or intended for the manufacture or reproduction of the counterfeit objects;
― the ones connected with the restraint of the illegal use of the information and telecommunication
networks, including the Internet.
The legislation contains only a description of the general principles for the functioning of the interim
measures and their non-exhaustive list. However, in particular cases there is no indication to the
application of specific measures. It points to the fact that, as in the cases with other branches of the civil

law, the court must determine independently the measures necessary for the use, which may not have
been specified in the norms, being guided by the principle of proportionality.
Among the interim measures used in the copyright disputes there are those that are due to the specifics of
the field. These include the measures to prohibit the transportation, storage or ownership of the
counterfeit copies, as well as the actions to arrest the materials and the equipment used to manufacture the
counterfeit copies. In respect of the specified measures, there are various discussions in respect of the
fault and intent in the defendant’s actions at the transportation, storage or, for example, the use of the
equipment. After all, the owners of the property (the vehicles or the apparatuses for the manufacture)
could have been unaware of the illegality of the actions being performed. To minimize the cases of
damage to innocent persons, Paragraph 1 of Article 1302 of the Civil Code of the Russian Federation
states that in order to prohibit the actions the judicial authority must have sufficient ground to assume that
the actions of the person are illegal.
Why we need the measures to secure the claims in the copyright
Assessing the need to file a petition for the interim measures, the person whose rights are violated should
take into account the following:
― According to Paragraph 1 of Article 50 of the TRIPS Agreement, the use of the interim measures is
aimed at:
“a) preventing the occurrence of a violation of any intellectual property right;
b) preserving the relevant evidence relating to the alleged violations.” 1
― The actions performed timely in order to secure the claim will allow reducing the time costs and they
will serve as a guarantee of the execution of the court decision in the case.

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Author of article

Sergey Zuykov

Sergey Zuykov

Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney