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Company OTOY New Zealand Limited failed to prohibit the use of the computing machine programme in the Internet even after an appeal petition

June 8, 2018

The Board of Appeals of the Moscow City Court dismissed an appeal petition of OTOY New Zealand Limited, a New Zealand company, in its claim on prohibiting the use of computing machine programme Octane Render in the Internet.

OTOY New Zealand Limited has already appealed to the Moscow State Court for the second time with an appeal petition to LLC Registrar of Domain Names REG. RU, which is a hosting provider of domain name fstormrender.ru, with the claim to prohibit the creation of technical conditions that ensure posting, distributing and other use of computing machine programme Octane Render under name FStormRender on website https.//fstromrender.ru.

In support of its claims, OTOY stated that the exclusive rights to the computing machine programme belonged to it and the use of the programme without a legal basis in the Internet on website https.//fstromrender.ru was illegal and violated the company's exclusive right.

The lawyers of company Zuykov and Partners during the consideration of the case were representing the interests of company PinkSoft, involved in the case as a third party and being an owner and administrator of the domain name of website https.// fstromrender.ru. During the judicial trial LLC PinkSoft was involved as a co-defendant instead of improper defendant LLC Registrar of Domain Names REG.RU.

Kozlov A.A. being a domain name administrator noted that he used his own computing machine programme, which OTOY did not have the exclusive rights to.

After the disagreement with the conclusions of the plaintiff's expert testimony on the identity of two computing machine programmes, company Zuykov and Partners submitted to the court a review of the above testimony and applied for the appointment of a judicial computer-technical examination.

The examination took place, after which it was established that the computing machine programmes were not identical: the source code of FStormRender programme was neither a reproduction nor a revision of OktaneRender programmes, because there were no signs of a copy and modification of the source code.

After the Moscow State Court's dismissed the asserted claims, company OTOY New Zealand Limited filed an appeal petition. With the help of the efforts of company Zuykov and Partners, LLC PinkSoft managed to preserve its interests, the appeal petition was dismissed.

In its decision, the court concluded that the legislation did not prohibit the implementation by two different computer programmes, as a whole or in part, of the same data processing algorithm, or the use of such an algorithm in one of the majority of the programme modules, such programmes could not be recognized as reproduced or revised, if they had significantly different source tests/programme codes, as evidenced by the expert's metrics.

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Author of article

Sergey Zuykov

Sergey Zuykov

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