Zuykov and partners defended the interests of Interactive Life Forms in the case for the protection of the exclusive copyright for the design
The regional Moscow Arbitration Court considered the case on the company LLC Interactive Life Forms claim against the limited liability company PIKASHKI and Yurchenko Evgeny Valerievich regarding the exclusive copyright protection. The LLC Interactive Life Forms copyright holder has determined that several Internet websites offer and sell sex toys for adults FLASHNASH Stars male masturbators using packaging designs that are the packaging redesign for the Fleshlight Girls Katsuni male masturbator.
The company addresses to the Arbitration Court with a claim statement for the Yurchenko E. obligation to remove from websites a sale offer packages, which use the redesign of the "Fleshlight Girls Katsuni" packaging design, and also collect from Yurchenko E.T. and community the compensation for the infringement of exclusive copyright of the packaging design, referring to the lack of proper company consent to redesign this packaging design.
Having evaluated the evidence presented in the case file according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the court concluded that the defendants’ joint actions to post on the website images of packages for male masturbators "FLASHNASH Stars" violated the plaintiff's exclusive right to his property package design Besides. The court did not determine the grounds for satisfying the company's claim on the obligation Yurchenko E to remove from websites a sale offer for using packages that are the packaging redesign of the male masturbator "Fleshlight Girls Katsuni", since during the trial Yurchenko E. became the owner of the exclusive rights to an industrial design and a trademark, the which features are implemented in the proposed product Yurchenko E.V. and the society of the product. As a result, the court concluded that it was impossible to satisfy the relevant claims until the “junior” result of intellectual activity, opposed in this dispute to the company's packaging design, was invalidated. At the same time, the court found it reasonable for the company to claim compensation from the company and Yurchenko E.V. for infringement of the exclusive right to design packaging, calculated based on Article 1301 of the Civil Code.
Disagreeing with this judicial act, the defendants appealed to the Tenth Arbitration Court of Appeal with complaints, in which they pointed out that the decision of the court of the first instance was adopted in violation of the rules of substantive and procedural law, with the incomplete study of the circumstances that are essential for consideration of this dispute. The findings set out in the decision do not correspond to the actual circumstances of the case, in connection with which the defendants asked the court of the first instance to cancel the decision and adopt a new judicial act on the case.
The plaintiff also disagreed with the findings of the first instance court regarding the refusal to satisfy the requirements, believing that, in dismissing the claims to oblige Yurchenko to remove the FLASHNASH Zvezda offer for sale, the trial court incorrectly applied the substantive law and did not take into account the explanations of the higher courts, therefore Interactive Life Forms, LLC repeatedly applied to Zuykov & Partners LLC to represent it in the court of appeal.
As part of the preparation of the appeal and the consideration of the case in the court of appeal, the lawyers of LLC Zuykov and Partners once again drew attention to the fact that one of the defendants has the right to a trademark and industrial design in itself does not indicate the absence of a violation of the exclusive right of the plaintiff and the impossibility of restoring his violated right until the invalidation of the "junior" results of intellectual activity opposed in this dispute to the packaging design of the company, which is consistent with the legal position set out in paragraph 74 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.04.2019 N 10 "On the application of part fourth of the Civil Code of the Russian Federation. " In addition, the court, having established the fact of violation of the exclusive right of the plaintiff, applied the method of protecting the exclusive right to the results of intellectual activity in the form of recovering compensation, while refusing, in the presence of appropriate evidence, to apply another method of protecting the violated right in the form of suppressing actions that violate the right, which, according to the company, is a violation of Article 1252 of the Civil Code of the Russian Federation.
Having studied the parties' legal positions, as well as having heard explanations from the representatives of the plaintiff and the defendants in the court session, the Tenth Arbitration Court of Appeal ruled the decision of the Arbitration Court of the Moscow Region dated 02.08.2021 in case No. А41-31179 / 20 to cancel, and to satisfy the claim in part:
- Oblige Yurchenko E.V. to remove from the eroshop.ru and nasoloda.ru websites seller offer the disputed products using packaging that is a plaintiff's packaging redesign.
- To recover from Yurchenko E.V. and "Pikashki" LLC jointly 1 500 000 rubles for infringement of the right to the packaging design of the disputed products in favor of Interactive Life Forms, LLC.
- To dismiss the remainder of the claim.