The Ministry of Defense of Russian Federation ended in a fiasco once again
The case concerning the objections of the Ministry of Defense of the Russian Federation (further – MD RF), against the trademarks registration of clients of the company "Zuykov and partners"- Regional public Fund for the support of Cultural center of the Ministry of Internal Affairs and the Academic song and dance ensemble of internal troops of the Interior Ministry, which was considered by the Board of Rospatent in February 2016, was continued.
After the Board of Rospatent dismissed the objections of the plaintiff MD RF filed an application to the Intellectual Property Court, to invalidate the decision of the Federal service for intellectual property (case no SIP-13/2016 and SIP-14/2016), with the participation of the third parties who did not declare independent requirements concerning a subject of dispute - the Ministry of internal Affairs of the Russian Federation (MVD) and Federal security service (FSB). Thus, all power structures of the country were involved in this case.
The Ministry of defense referred to the invalidity of the conclusion of Rospatent about the fact that legal protection of the contested trademark No. 401140 did not affect the rights and legitimate interests of the Agency. The Ministry of Defense also noted that according to the decree of the President of the Russian Federation from 16.08.2004 № 1082 "Questions of the Ministry of Defense of the Russian Federation" to the powers of the applicant belongs the organization of military-historical and cultural activities to enhance the society reputation and prestige of military service. So the fact that the verbal element of the trademark included the official name of the Armed forces of the Russian Federation – "RED ARMY" without the consent of the Ministry of Defense were not taken into account while registering the disputed trademark with Rospatent.
The applicant considered that the verbal element of the contested trademark contains the official abbreviation of the name of the internal troops of MD RF – "IF MIA RF", and the phrase "RED ARMY" which is the official name of the Armed forces of the Russian Federation, who is the successor of the red Army. It is capable to mislead a consumer as to the services or its contractor.
Having considered all submitted documents and after hearing the arguments of the parties, Intellectual Property Court issued the following statement.
The powers of Rospatent for consideration of objections against legal protection to a trademark and to take action on the results of consideration established by the norms of part four of the civil code and the Statute on the Federal service for intellectual property (decree of the Government of the Russian Federation dated 21.03.2012 №218) and persons participating in the case are not in dispute. The court also noted that the application for the grant of a patent, a trademark application and the application for an appellation of origin of goods shall be examined by Rospatent in the order established by the legislation applicable at the time of application.
As far as at the time of filing the application for registration of the contested trademark, the formal prohibition on registration as trademarks of signs identical or similar to degree of mixture with official names of state bodies of the Russian Federation was lacked, and so obtaining consent from the appropriate authority was not necessary.
The court also reported about the absence of evidence in the case file that the worker-peasant Red Army or the Red Army are one of the official names of modern Armed Forces of the Russian Federation. And also the court emphasis on that the contested trademark has been registered in respect of services of class 41 of the International Classification of Goods and Services (services in the field of entertainment), this fact is not capable to evoke associations of the Armed forces of the Russian Federation. The same symbol may be declared in respect of some goods – descriptive, in other – false, and in respect of third – imaginative. The court, taking into account the list of services of the 41st class of the International Classification of Goods and Services, for individualization of which the disputed trademark were registered, defined the phrase "RED ARMY" as an imaginative designation.
The arbitration courts came to the same conclusions concerning the cases № A40-72316/2011 and № A40-31183/2012, indicating that the designation "Red Army" is not associated of the modern Armed Forces of the Russian Federation.
According to the foregoing Intellectual Property Court delivered judgment on refusal in satisfaction of the declared requirements. Thus, the lawyers of the company "Zuykov and partners" have once again managed to protect the client's interests – Regional public Fund of support of Cultural center of the Ministry of internal Affairs and the Academic song and dance ensemble of internal troops of the Ministry of internal Affairs and defend its trademark rights.