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Danil Lugovoy

Danil Lugovoy

Lawyer

Office: Russia

In 2019, he graduated from St. Petersburg State University of Economics with a bachelor's degree in Jurisprudence.

In 2021 he graduated from the Kutafin Moscow State Law University under the program "Master in Intellectual Property and Law of New Technologies".

Danil speaks English.


He has been working at Zuykov and partners since 2021 and is engaged in:

  • Consideration of controversial issues related to objects of intellectual property;
  • Defending the interests of clients in courts, FAS;
  • Advising clients on issues related to the acquisition, protection, and disposal of intellectual property rights;
  • Writing articles for the company's website and magazines specializing in intellectual property.


Working experience

2019 – legal assistant in a civil law firm;

2020 - 2021 - senior lawyer in a law firm specializing in intellectual property;


Achievements

Refresher courses:

2013, 2014 - Full-time conversational English courses at Embassy Summer School (London, UK).

2017 - Full-time courses on the development of memory and working with information at the Advance School (St. Petersburg).

2018 - Full-time English courses with a native speaker at the Intermediate level at the Orange language school (St. Petersburg).

2021 - Online English courses with a native speaker at B2 level at Lingoda School.


Certificates

2021, 2022 - Encouraged by gratitude and a certificate for active participation in the IX and X International Legal Forum "Legal Protection of Intellectual Property: Problems of Theory and Practice" (IP Forum)


Articles

Use and protection of music copyright and related rights
CopyrightParagraph 1 of Article 1229 of the Civil Code of the Russian Federation provides that a citizen or legal entity who has an exclusive right to a result of intellectual activity or a means of individualization (right holder) has the right to use such a result or such a means at his own discretion in any way that does not contradict the law.The copyright holder may, at his own discretion, permit or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission).Other persons may not use the corresponding result of intellectual activity or means of individualization without the consent of the copyright holder, except in cases provided for by the said Code. The use of a result of intellectual activity or a means of individualization (including their use in the ways provided for by the same Code), if such use is carried out without the consent of the copyright holder, is illegal and entails liability established by this Code and other laws, except for cases where the use of the result of intellectual property activities or means of individualization by persons other than the copyright holder, without his consent, is permitted by the said Code.Article 1259 of the Civil Code provides that the objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the method of its expression, in particular these include literary works and musical works with or without text.In accordance with paragraph 1 of Article 1270 of the Civil Code, the author of a work or other copyright holder has the exclusive right to use the work in accordance with Article 1229 of this Code in any form and in any manner that does not contradict the law (exclusive right to a work), including in the ways specified in paragraph 2 of the said article.Article 1301 of the Civil Code provides that in cases of violation of the exclusive right to a work, the author or other copyright holder, along with the use of other applicable methods of protection and liability measures established by this Code (Articles 1250, 1252 and 1253), has the right in accordance with paragraph 3 of the article 1252 of the said Code, demand, at your choice, from the violator, instead of compensation for losses, payment of compensation:in an amount from ten thousand rubles to five million rubles, determined at the discretion of the court based on the nature of the violation;twice the cost of counterfeit copies of the work;twice the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work in the manner used by the infringer.Related rightsAccording to subparagraphs 1 and 2 of paragraph 1 of Article 1304 of the Civil Code, objects of related rights are recognized as performances by performing artists and conductors, productions by stage directors (performances), if these performances are expressed in a form that allows their reproduction and distribution using technical means; and phonograms, that is, any exclusively sound recordings of performances or other sounds or their representations, with the exception of a sound recording included in an audiovisual work.In accordance with Article 1317 of the Civil Code, the performer has the exclusive right to use the performance in accordance with Article 1229 of this Code in any way that does not contradict the law (exclusive right to perform), including the methods specified in paragraph 2 of this article.The producer of the phonogram has the exclusive right to use the phonogram in accordance with Article 1229 of this Code in any way that does not contradict the law (exclusive right to the phonogram), including the methods specified in paragraph 2 of this article.Article 1311 of the Civil Code provides that in cases of violation of the exclusive right to an object of related rights, the owner of the exclusive right, along with the use of other applicable methods of protection and liability measures established by this Code (Articles 1250, 1252 and 1253), has the right in accordance with paragraph 3 Article 1252 of this Code, at your choice, require the violator to pay compensation instead of compensation for losses:in an amount from ten thousand rubles to five million rubles, determined at the discretion of the court based on the nature of the violation;twice the cost of counterfeit copies of the phonogram;twice the value of the right to use the object of related rights, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of such an object in the manner used by the violator.Thus, the concept of “music” in the current legislation may include such objects as “a musical work with or without text”, “phonogram”, “performance”, and even “literary work” - both together as part of a phonogram, and separately.Thus, in paragraph 111 of the Resolution of the Plenum of the Supreme Court dated April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation” it is explained that a musical work with or without text (object of copyright), its performance by the performing artist and the phonogram of the performance represent are independent results of intellectual activity, the exclusive rights to which may belong to different persons. The order is carried out in relation to each right separately. Violation of rights for each such result is of an independent nature.The rights of the phonogram producer are recognized and valid regardless of the existence and validity of copyrights and the rights of performers. At the same time, paragraph 2 of Article 1323 of the Civil Code establishes the need for phonogram producers to exercise their rights while respecting the rights of authors of works and the rights of performers.Court practiceRussian courts also point out that the rights of the phonogram producer are derived from the rights of authors and performers. Thus, the Fourth Arbitration Court of Appeal, when considering case No. A10-6900/2017, noted (page 10 of the resolution dated June 21, 2018) that “intellectual rights to a derivative object are recognized regardless of the validity of intellectual rights to the original object, but in order to exercise the rights it is necessary to comply with intellectual rights rights to the original object (clause 3, 4 of article 1260, clause 3 of article 1303, clause 2, 3 of article 1315, clause 2 of article 1323 of the Civil Code of the Russian Federation).”This conclusion was confirmed by the Seventeenth Arbitration Court of Appeal when considering case No. A60-28720/2009 (page 9 of the decision dated 02/25/2010): “ And in the case under consideration, the consent of the author of the work to its use is a necessary condition for the implementation of the related right of the phonogram producer.”.The Supreme Arbitration Court came to a similar conclusion in Ruling No. VAS-4308/09 dated April 22, 2019: “Refusing to satisfy the claims, the courts referred to the fact that the production center used musical works in the exercise of related rights to phonograms...This conclusion of the courts indicates the incorrect application of the rules on copyright for musical works, and related rights to phonograms...It is unlawful for the courts to refer to the fact that the production center used only a phonogram, and not the musical works themselves...Phonogram is any purely sound recording of a performance or other sounds...The producer of a phonogram exercises his rights within the limits of the rights obtained under an agreement with the performer and author of the work recorded on the phonogram….Under such circumstances, the actions of the production center are a violation of the plaintiff’s exclusive right to musical works, and judicial acts are subject to cancellation .”Thus, in order to use a phonogram, it is necessary to obtain permission (conclude an agreement) with the owner of the exclusive rights to a musical work, performance, and in some cases, to a literary work. In case of failure to obtain such permission, the use of each of these objects as part of one phonogram will be recognized as a separate violation. The Ninth Arbitration Court of Appeal came to a similar conclusion in its ruling dated March 17, 2021 in case No. A40-326511/2019.According to Article 1254 of the Civil Code of the Russian Federation, if a violation by third parties of the exclusive right to a result of intellectual activity or to a means of individualization, for the use of which an exclusive license has been issued, affects the rights of the licensee received by him on the basis of a license agreement, the licensee may, along with other methods of protection, protect his rights in the ways provided for in Articles 1250 and 1252 of this Code.The burden of proof in such cases is distributed as follows: the defendant is obliged to prove compliance with the requirements of the law when using objects of copyright and related rights. The plaintiff must confirm the fact that he has exclusive rights to protect them, as well as the fact that these rights are used by the defendant.By virtue of Part 1 of Article 64, Articles 71 and 168 of the Arbitration Procedural Code of the Russian Federation, the arbitration court establishes the presence or absence of circumstances justifying the demands and objections of the persons participating in the case, as well as other circumstances important for the correct consideration of the case, based on the evidence presented.Violation of the exclusive right and justification of compensationAccording to the explanation contained in paragraph 56 of Resolution No. 10, the use of the result of intellectual activity or a means of individualization in several ways represents, as a general rule, a corresponding number of cases of violation of the exclusive right.At the same time, the use of the result of intellectual activity or a means of individualization by one person in different ways aimed at achieving the same economic goal constitutes one violation of an exclusive right. For example, storage or transportation of counterfeit goods, provided that they are completed by the actual introduction of this product into civil circulation by the same person, are an element of the introduction of the goods into civil circulation and do not form separate violations in this case. The sale of goods with their subsequent delivery to the buyer constitutes one violation of an exclusive right.The above provision is often applied by courts when considering cases related to the protection of exclusive rights to musical works/phonograms in the event of their unauthorized use on streaming platforms - it should be borne in mind that in this case, use in several ways has a single economic goal, namely the organization of access to users of the music service, posted on the above site, the opportunity to listen to musical works by various authors and performers (ruling of the Intellectual Rights Court dated November 7, 2019 in case No. A40-308292/2018). This circumstance can be used as a basis for reducing the amount of compensation if the plaintiff claims multiple violations, justifying this by using the same object in several ways.It should be borne in mind that there are other grounds for reducing the amount of compensation.Thus, according to paragraph three of paragraph 3 of Article 1252 of the Civil Code, if the rights to several results of intellectual activity or means of individualization are violated by one action, the amount of compensation is determined by the court for each unlawfully used result of intellectual activity or means of individualization. Moreover, if the rights to the corresponding results or means of individualization belong to one copyright holder, the total amount of compensation for violation of the rights to them, taking into account the nature and consequences of the violation, may be reduced by the court below the limits established by this Code, but cannot be less than fifty percent of the amount minimum amounts of all compensation for violations committed.In accordance with the explanation of the highest court set out in paragraph 64 of Resolution No. 10, the provisions of paragraph three of paragraph 3 of Article 1252 of the Civil Code on reducing the amount of compensation are subject to application in cases where one action violates the rights to several results of intellectual activity or means of individualization (hereinafter - in case of multiple violations), in particular, when one action violates the rights to:several results of intellectual activity or means of individualization, interconnected: a piece of music and its phonogram; the work and the trademark in which this work is used; trademark and name of place of origin of the goods; trademark and industrial design;several results of intellectual activity or means of individualization that are not related to each other (for example, in the case of the sale by one person of a product with different trademarks illegally applied to it or the distribution of a material medium in which several different copies of works are expressed).The above provision of the Civil Code on reducing the amount of compensation can also be applied in cases where there are several offenses committed by one person in relation to one result of intellectual activity or means of individualization and constituting a single process of using the object (for example, reproduction of a work and its subsequent spreading).The provisions of paragraph three of paragraph 3 of Article 1252 of the Civil Code apply only if there are multiple violations and only if the defendant declares the need to apply an appropriate procedure for reducing compensation.Thus, the features specified in this article related to the protection of copyright and related rights to music may allow the copyright holder/exclusive license holder to more effectively protect their rights, and the defendant in such cases to use these features to reduce the size of the stated claims.
Alienation of exclusive rights to trademarks in relation to part of the goods (services)
According to paragraph 64 of the Administrative Regulations for the provision by the Federal Service for Intellectual Property of state services for state registration of orders under an agreement with the exclusive right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit, a program for electronic computers, a database, approved by order of the Ministry of Economic Development of Russia dated June 10, 2016 No. 371, when checking the submitted documents for state registration of the transfer of rights to trademarks, Rospatent checks the documents’ compliance with the registration conditions specified, inter alia, in subparagraph “i” of paragraph 3 of the Rules for state registration of orders for exclusive the right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit, computer program, database under a contract and the transfer of the exclusive right to the specified results of intellectual activity without a contract, approved by the Decree of the Government of the Russian Federation of December 24, 2015 No. 1416, taking into account the provisions of Article 1488 of the Civil Code of the Russian Federation.As stated in paragraph 2 of Article 1488 of the Civil Code of the Russian Federation and subparagraph “i” of paragraph 3 of the Rules, alienation of the exclusive right to a trademark under a contract is not allowed if it may cause misleading of the consumer regarding the person producing goods/services.Alienation of the exclusive right to a trademark under a contract may be considered as misleading the consumer regarding the product in cases where it is carried out in relation to a trademark that is confusingly similar to a trademark in relation to homogeneous goods and services, the rights to which are retained by the original copyright holder.The above norms are also taken into account when “dividing” trademarks, when a part of the goods (services) is alienated to the acquirer.In this case, taking into account the division of the trademark, in the event of successful registration of such alienation, two different copyright holders will have the exclusive right to identical designations, which, in order to comply with the above rules, must be protected in relation to goods (services) that are not similar to each other.Thus, for successful registration of the alienation of the exclusive right to a trademark in terms of goods/services, it is necessary that, as a result of such alienation, the consumer is not misled about the manufacturer of such goods/services, that is, cases where several right holders have similar/identical designations in the list of legal protection of which homogeneous goods/services are indicated.It should be borne in mind that if there is a series of trademarks registered in relation to similar lists of goods/services, their division is possible only if all trademarks are its subject, that is, when analyzing the possibility of such division, its subject in fact, it will be a comparison of each item (good/service) subject to alienation from one sign with each item (good/service) not included in the subject of alienation.The above analysis for the homogeneity of the shared lists of goods /services occurs according to the following rules.Issues related to establishing the homogeneity of goods (services) are regulated in accordance with Rules No. 482, as well as in accordance with the explanations of the highest court specified in paragraph 162 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 N 10 “On the application of part four of the Civil Code of the Russian Federation".In accordance with paragraph 45 of Rules No. 482, when establishing the homogeneity of goods, the fundamental possibility of the consumer having the idea that these goods belong to the same manufacturer is determined.Complementarity or interchangeability of goods, conditions and channels of their sale (general place of sale, sale through a retail or wholesale network), circle of consumers and other signs are taken into account.The conclusion about the homogeneity of goods is based on the results of an analysis of the listed characteristics in their totality if the goods or services, due to their nature or purpose, can be attributed by consumers to the same source of origin (manufacturer).As stated in paragraph 4 of paragraph 162 of Resolution No. 10, the homogeneity of goods is established based on the fundamental possibility that an ordinary consumer of the corresponding product will have the idea that these goods belong to the same manufacturer. In this case, the court takes into account the type (type) of goods, their purpose, the type of material from which they are made, the conditions for the sale of goods, the circle of consumers, complementarity or interchangeability and other circumstances. In practice, when carrying out such a division, there are frequent cases when some goods/services are homogeneous both with alienated positions and with positions retained by the copyright holders, which is why they cannot either be included in the subject of the transaction or not.This situation often arises when dividing trademarks that are protected in relation to a wide range of goods and services, and this problem is solved either by changing the subject of the transaction, or by amending the trademark certificate in the form of a complete exclusion of the specified goods/services from its legal protection.As an example, you can register a trademark under certificate of the Russian Federation No. 352936, in respect of which an agreement on the alienation of the exclusive right to all services of the 35th class of the ICTU was registered (No. RD0435112 dated 06/21/2023): for the alienation of the specified list of services, the right holder was from the list of legal protection the services of the 35th class of the ICGS “hotel business management ” were alienated, which could be recognized as homogeneous both with the services remaining with the copyright holder (the service of the 44th class of the ICGS “rest homes or sanatoriums”), and with the services alienated to the acquirer. In this case, an analysis for the possibility of dividing trademarks must be carried out before submitting documents for registration of partial alienation for the reason that, as a rule, if homogeneity is detected, Rospatent sends a notification about the need to submit missing and (or) properly executed documents for consideration of the application, in which, however, does not indicate all the obstacles in registering partial alienation. This practice is common when dividing wide lists that have a large number of homogeneous connections.However, the opinion on the presence/absence of homogeneity in non-obvious situations may differ not only among professional patent attorneys, but also among Rospatent experts, as well as judges of the Intellectual Property Rights Court and other arbitration courts.For example, the homogeneity of the goods “beer” and “beer snacks” was established only by the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 18, 2006 No. 2979/06 in case No. A40-63533/04.Thus, even the analysis carried out before filing documents for division of a trademark (marks) does not guarantee the sending of a notification to Rospatent about the need to eliminate the detected homogeneity of the compared goods/services, but it can reduce the risk of such a notification.Based on the foregoing, we can conclude that partial alienation of a trademark is possible only if the alienated part of the goods/services is not recognized as homogeneous to those goods/services that remain with the copyright holder.
Protection of rights to a trademark that includes unprotected elements
As stated in paragraph 1 of Article 1483 of the Civil Code of the Russian Federation, state registration as trademarks of designations that do not have a distinctive ability or consist only of elements is not allowed:come into general use to designate goods of a certain type;being generally accepted symbols and terms;characterizing the goods, including indicating their type, quality, quantity, property, purpose, value, as well as the time, place and method of their production or sale;representing the form of goods, which is determined exclusively or mainly by the property or purpose of the goods.These elements may be included in the trademark as unprotected elements, if they do not occupy a dominant position in it.The exclusive right to a trademark is conditioned by the ability to use it in any way that does not contradict the law, including the methods specified in paragraph 2 of Article 1484 of the Civil Code of the Russian Federation, namely:on goods, including on labels, packaging of goods that are produced, offered for sale, sold, demonstrated at exhibitions and fairs, or otherwise introduced into civil circulation on the territory of the Russian Federation, or stored or transported for this purpose, or imported into the territory Russian Federation;when performing work, rendering services;on documentation related to the introduction of goods into civil circulation;in offers for the sale of goods, for the performance of work, for the provision of services, as well as in advertisements, on signs and in advertising;on the Internet, including in a domain name and with other addressing methods.In order for the use of any designation to be recognized as a violation of the exclusive right to a trademark, it is necessary to establish their identity or confusing similarity.In view of the foregoing, non-protectable elements included in a trademark are those elements that should be freely used in relation to a particular product/service. Examples include the following trademarks:If the court considers a dispute on the protection of the exclusive right to a trademark, the courts, when comparing the designations, are guided by the following.As stated in paragraph 162 of the Decree of the Plenum of the Supreme Court of the Russian Federation of April 23, 2019 N 10 “On the Application of Part Four of the Civil Code of the Russian Federation” (hereinafter referred to as Decree No. 10), the likelihood of confusion between a trademark and a disputed designation is determined based on the degree of similarity of designations and the degree of homogeneity goods for the specified persons. At the same time, confusion is also possible with a low degree of similarity, but identity (or proximity) of goods or with a low degree of homogeneity of goods, but identity (or a high degree of similarity) of the trademark and the disputed designation.Establishment of similarity is carried out by the court based on the results of a comparison of the trademark and designation (including graphic, sound and semantic criteria), taking into account the evidence presented by the parties, according to their inner conviction. At the same time, the court takes into account in respect of which elements there is a similarity - strong or weak elements of the trademark and designation. The similarity of only unprotected elements is not taken into account.Also, to compare the designations, the criteria specified in paragraphs 41-44 of the Order of the Ministry of Economic Development of Russia dated July 20, 2015 No. 482 (Rules No. 482).At the same time, judicial practice has developed an approach that the difference between unprotected elements of a trademark can be taken into account when establishing the overall impression of the designation and influence the degree of their similarity. Taking into account the influence of unprotected elements of compared designations on the perception of their compositional solutions as a whole contributes to the assessment of the likelihood of their confusion in civil circulation from the point of view of an ordinary consumer and does not lead to an expansion of the scope of legal protection of the respective trademarks (decision of the Presidium of the Intellectual Property Rights Court dated 04.03. No. SIP-344/2020).Thus, when assessing the defendant's use of a trademark, the court also takes into account unprotected elements, but they are taken into account in combination with other elements, as an assessment of the perception of the average consumer of compositional solutions (comparable designations) as a whole.If the court establishes the similarity between the compared designations solely on the basis of unprotected elements, then such similarity should not be taken into account and affect the court's conclusion about the similarity of such designations as a whole.The above is also confirmed by judicial practice: the use of an exclusively unprotected element of a trademark cannot be recognized as an infringement, since unprotected elements cannot be the basis for determining the presence or absence of similarity to the point of confusion of trademarks and cause the threat of their confusion to consumers. A similar legal approach is determined by the highest court in the ruling of the Supreme Court of the Russian Federation of December 12, 2014 N 301-ES14-1129.As the Supreme Court of the Russian Federation pointed out in the above definition, unprotected elements of a trademark cannot be the basis for determining the presence or absence of similarity to the point of confusion of a trademark and cause the threat of their confusion by consumers.Otherwise, it would mean expanding the scope of legal protection of a trademark containing such unprotected elements, which would make it meaningless to direct an administrative body to disclaim them , and would also harm good faith economic relations.The above circumstances must be taken into account when applying to the court for protection of the exclusive right to a trademark that includes unprotected elements.
Legal protection of a trademark for six months after expiration of the exclusive right
In accordance with paragraph 1 of Article 1491 of the Civil Code of the Russian Federation, the exclusive right to a trademark is valid for ten years from the date of filing an application for state registration of a trademark with the federal executive authority for intellectual property or in the case of registration of a trademark mark under the divisional application from the filing date of the original application.The term of validity of an exclusive right to a trademark may be extended for ten years at the request of the right holder, filed during the last year of validity of this right.Extension of the term of the exclusive right to a trademark is possible an unlimited number of times.At the request of the right holder, he may be given six months after the expiration of the exclusive right to a trademark to file the said application (р. 2 of Article 1491 of the Civil Code of the Russian Federation).This provision is consistent with Article 5. bis of the Paris Convention for the Protection of Industrial Property of 20.03.1883, which states that a grace period of at least six months is granted for the payment of fees for the preservation of industrial property rights, subject to the payment of an additional fee if such a fee is prescribed by national law.In accordance with subparagraphs 1 and 5 of paragraph 1 of Article 1514 of the Civil Code of the Russian Federation, the legal protection of a trademark is terminated due to the expiration of the exclusive right to a trademark.In view of the foregoing, there is uncertainty regarding the issue of the presence / absence of legal protection of a trademark within a grace period of six months after the expiration of the exclusive right, for the resolution of which we will turn to the current practice of the Chamber for Patent Disputes and to the practice of the Court for Intellectual Property Rights.Thus, in the Conclusion of the Board of the Chamber for Patent Disputes dated February 12, 2021, based on the results of consideration of the objection (Appendix to the decision of the Federal Service for Intellectual Property dated March 31, 2021 on application No. 2019737346/33), the following is stated: however, in accordance with paragraph 3 of paragraph 2 of Article 1491 of the Code, the period of validity of the exclusive right to a trademark may be extended at the relevant request of the right holder also within six months after the expiration of the above period of validity of the exclusive right to a trademark. Therefore, both on the date of acceptance of the objection for consideration, and directly on the date of its consideration, the right holder of the opposing trademark has not yet exhausted the six-month period during which he can file an application for an extension of the term of the exclusive right to this trademark, which does not allow the board does not take into account this trademark as still preventing the granting of legal protection to the claimed designation.A similar position is set out in the Opinion of the Board of the Chamber for Patent Disputes dated 01/21/2021 based on the results of consideration of the objection (Appendix to the decision of the Federal Service for Intellectual Property dated 02/05/2021 on application No. 2019708322/33): The legal protection of the trademark expired on 02/04/2020. At the same time, the norm of paragraph three of clause 2 of Article 1491 of the Code provides for the possibility of extending the legal protection of the mark for an additional six months after the expiration of the legal protection of the mark, that is, until 08/04/2020. Information on the termination of the legal protection of a trademark due to the expiration of the exclusive right to a trademark was entered in the State Register on January 19, 2021 and published in Bulletin No. 2. Thus, the board does not further take into account the trademark as an opposition, and in the Conclusion of the Patent Disputes Chamber dated February 7, 2022, based on the results of consideration of the objection (Appendix to the decision of the Federal Service for Intellectual Property dated March 4, 2022 on application No. 2019759302/33), the following is stated: As for the applicant's argument that the trademark registration period (according to Certificate No. 590434) expired on 31.10.2021, the board notes the following. In accordance with the norm of paragraph 2 of Article 1491 of the Code, at the request of the rightholder, he may be granted six months (until 30.04.2022) after the expiration of the exclusive right to a trademark to submit a corresponding application for the extension of the exclusive right to a trademark. In connection with the above, this trademark cannot be ignored.Based on the foregoing, Rospatent, when considering applications for the registration of other trademarks, takes into account trademarks, the exclusive right to which has formally expired, within a six-month period for its renewal.Court also agreed with the arguments of the administrative body in its decision dated 10/15/2021 in case No. SIP-422/2021, indicating the following: The Board also draws attention to the fact that, as the administrative body correctly pointed out, the norm of paragraph 3 of paragraph 2 of Article 1491 of the Civil Code of the Russian Federation provides for the right holder to extend the validity of the exclusive right to a trademark for six months after the expiration of the exclusive right to a trademark.In the case under consideration, Rospatent established that, regardless of the expiration of the exclusive right to a trademark under the certificate of the Russian Federation No. 234712, at the time of the contested decision, NPK Koflot had not exhausted the possibility of restoring the legal protection of this remedy provided for by law and that existed until 05/06/2021 individualization for the purpose of subsequent extension of the term of the exclusive right to the named trademark.In this regard, the administrative body reasonably proceeded from the need to take into account the fact of registration of a trademark according to the certificate of the Russian Federation N 234712 as a circumstance preventing the state registration of the designation according to application N 2019737346 as a trademark.Taking into account the confirmation by the Intellectual Property Court of the legitimacy of the actions of the administrative body for the registration of trademarks, the validity of the exclusive right to which has expired (within six months after its expiration), it can be concluded that, by analogy, this rule should apply to other situations, in particular when considering the issue of payment of remuneration by the licensee of such a trademark for the specified six-month period.As indicated in paragraph 2 of clause 40 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation”, within the meaning of clause 5 of Article 1235 of the Civil Code of the Russian Federation in its relationship with clause 4 of Article 1237 of the Civil Code of the Russian Federation, remuneration for paid license agreement is paid for granting the right to use the result of intellectual activity or means of individualization.In accordance with paragraph 3 of clause 5 of article 1235 of the Civil Code of the Russian Federation, payment of remuneration under a license agreement may be provided in the form of fixed one-time or periodic payments, percentage deductions from income (revenue) or in another form.Accordingly, when establishing in the license agreement the conditions for the payment of remuneration in the form of periodic payments, or percentage deductions from income (receive), I believe that such remuneration should be paid, including for the use of a trademark after the expiration of the exclusive right to it in the aforementioned six-month grace period.In addition to the above problems, the issues of the presence / absence of the right holder of the right to use the trademark, as well as the legitimacy of non-contractual use of the trademark by third parties during the specified grace period, are also relevant.I believe that by analogy with the issues of opposing a trademark to an application for registration as a trademark of a confusingly similar designation and payment of a license fee in a specified period, the copyright holder should retain the exclusive right to use the trademark during the grace period, similar to the right to use such a trademark during the main period of its validity.In doctrinal sources, there is an opinion that the resolution of these issues should be tied to the intention of the copyright holder to apply to the administrative body with a statement on the extension of the exclusive right, however, I believe that, since third parties do not know and cannot know about such an intention (since it is unequivocally established whether the right holder will file an application for its renewal, or not - it is impossible), the existence of such an intention should be presumed, in view of which, during the specified grace period of six months, the exclusive right to a trademark should be recognized as valid when resolving all the issues mentioned in the article, including when considering the question of the legality of non-contractual use of a trademark by third parties.
Some features of the cassation appeal in arbitration courts
Consideration of disputes in arbitration courts often continues after the issuance of the final judicial act by the court of first instance.As stated in paragraph 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 30, 2020 N 13 “On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the arbitration court of the cassation instance” (hereinafter referred to as Resolution No. 13), the proceedings in the arbitration court of the cassation instance are aimed at eliminating mistakes made by the arbitration courts of the first and appellate instances and expressed in violation or incorrect application of the norms of substantive or procedural law, including due to the inconsistency of the conclusions of the courts of the first and appellate instances on the application of the rule of law to the actual circumstances.Decisions of the arbitration court of the first instance that have not entered into legal force may be appealed to the court of appeal by the persons participating in the case, as well as by other persons (Part 1 of Article 257 of the Arbitration Procedure Code of the Russian Federation).Some decisions of the arbitration court of the first instance cannot be appealed in the appellate procedure, but can be appealed in the cassation procedure - such decisions come into force from the day they are made.For example, decisions of a specialized arbitration court - the Intellectual Property Rights Court, adopted by it when considering cases as a court of first instance, come into force from the date of their adoption, are not subject to appeal, but can be appealed in cassation to the presidium of the Intellectual Property Rights Court (Part 2 of Article 273 of the Arbitration Procedure Code of the Russian Federation).As specified in Part 1 of Article 273 of the Arbitration Procedure Code of the Russian Federation, effective court orders issued by the arbitration court of the first instance, the decision of the arbitration court of the first instance, if such a decision was the subject of consideration in the arbitration court of the appellate instance or if the arbitration court of the appellate instance refused to restore the missed the term for filing an appeal, and the decision of the arbitration court of the appellate instance may be appealed in the order of cassation proceedings in whole or in part, provided that otherwise is not provided by the said Code, by the persons participating in the case, as well as by other persons in the cases provided for by the said Code.Thus, for a cassation appeal against a judicial act, it is necessary, as a general rule, for the case to pass the stage of appeal, if such a stage of the arbitration process is provided for the named category of cases.As a general rule, the period for a cassation appeal is two calendar months from the date of entry into force of the contested judicial act (Part 1 of Article 276 of the Arbitration Procedure Code of the Russian Federation).The arbitration court of the cassation instance considers the case by the collegiate composition of the court within a period not exceeding two months from the date of receipt of the documents by the court. The specified period may be extended on the basis of a reasoned application of the judge by the chairman of the court for a period of up to six months due to the particular complexity of the case, a significant number of participants in the arbitration process (Article 285 of the Arbitration Procedure Code of the Russian Federation).As a general rule, the arbitration court of the cassation instance verifies the legality of the decisions, rulings adopted by the arbitration court of the first and appellate instances, establishing the correctness of the application of the norms of substantive law and the norms of procedural law when considering the case and adopting the appealed judicial act and based on the arguments contained in the cassation appeal and objections to the complaint (Part 1 of Article 286 of the Arbitration Procedure Code of the Russian Federation).At the same time, a feature of the consideration of a cassation appeal is the lack of authority for the arbitration court of the cassation instance to re-evaluate evidence (new and (or) additional evidence related to the establishment of circumstances in the case is not accepted by the court of cassation (paragraph 2 of clause 30 of Resolution No. 13)).According to Part 2 of Article 286 of the Arbitration Procedure Code of the Russian Federation, regardless of the arguments contained in the cassation complaint, the arbitration court of the cassation instance checks whether the arbitration court of the first and appellate instances violated the procedural law norms, which, in accordance with Part 4 of Article 288 of the said Code, are grounds for canceling the decision Arbitration Court of First Instance, decision of the Arbitration Court of Appeal.Part 3 of Article 286 of the Arbitration Procedure Code of the Russian Federation provides that, when considering a case, the arbitration court of the cassation instance checks whether the conclusions of the arbitration court of the first and appellate instances on the application of the rule of law correspond to the circumstances established by them in the case and the evidence available in the case.Article 287 of the Arbitration Procedure Code of the Russian Federation defines the powers of the court of cassation.According to the legal position of the Constitutional Court of the Russian Federation given, including in the ruling dated February 17, 2015 M 274-O, Articles 286-288 of the Code, being in system connection with other provisions of this Code that regulate proceedings in the court of cassation, provide the court of cassation when checking judicial acts, the right to assess only the correctness of the application of substantive and procedural law by lower courts and does not allow him to directly examine the evidence and establish the actual circumstances of the case. Otherwise, it would allow the court of cassation to replace the courts of first and second instances, which independently examine and evaluate evidence, establish the factual circumstances of the case on the basis of the principles of competition, equality of the parties and the immediacy of the trial, which is unacceptable.Similar conclusions are contained in the ruling of the Supreme Court of the Russian Federation dated January 23, 2018 No. 305-ES17-14513.In view of the foregoing, the arguments of the persons participating in the case regarding the factual circumstances that such persons have not previously referred to, which are not supported by the evidence available in the case and the courts of the first and appellate instances, have not been established, are not taken into account and cannot be taken as the basis for the decision court of cassation (paragraph 4 of paragraph 30 of resolution No.13).As documents confirming the arguments and objections to the complaint, in particular, materials of judicial practice in cases with similar factual circumstances, substantiating, in the opinion of the applicant, the correctness of the application by the courts of first instance, appellate instances of the norms of substantive or procedural law (paragraph 7 of clause 30 of Decree No. 13).In addition, when considering a case in a court of cassation, the rules established for the court of first instance regarding the right of the parties to speak in debate and with remarks (Article 164 of the Arbitration Procedure Code of the Russian Federation) do not apply, since these rights are related to the consideration of the case on the merits, while the cassation consideration is aimed at verifying the legality of judicial acts of the courts of the first and appellate instances.In practice, the court hears the position of the applicant of the cassation complaint, then gives the floor to the opponent for his speech, after which, if there are no questions, he retires to the deliberation room.This circumstance must be taken into account when planning your speech - all your arguments must be stated immediately, not hoping for the opportunity to do this already at the stage of debate and remarks, since such a stage, as mentioned above, is not provided for by the procedural legislation.One of the features of the cassation appeal is a two-stage cassation stage - the first cassation (solid) and the second cassation (selective).As indicated in Part 1 of Article 291.1 of the Arbitration Procedure Code of the Russian Federation, judicial acts may be fully or partially appealed to the Judicial Collegium of the Supreme Court of the Russian Federation in the manner of cassation proceedings by persons participating in the case, as well as by other persons in the cases provided for by the said Code, if in contested judicial acts contain significant violations of the norms of substantive law and (or) norms of procedural law that affected the outcome of the trial and led to the violation of their rights and legitimate interests in the field of entrepreneurial and other economic activities.Given the above, the judicial act of the court of cassation, adopted in the first (solid) cassation, can be appealed in the second (selective) cassation.The above rule is also general - in some cases, the consideration of the case within the framework of the first cassation is final and not subject to appeal.For example, decisions of arbitration courts of districts that have not canceled court orders, canceled or amended judicial acts adopted in summary proceedings, are not subject to appeal to the Judicial Collegium of the Supreme Court of the Russian Federation (part 3 of article 291.1 of the Arbitration Procedure Code of the Russian Federation).A cassation appeal or presentation filed in accordance with the rules established by Article 291.1 of the Arbitration Procedure Code of the Russian Federation is examined by a judge of the Supreme Court of the Russian Federation, after which a ruling is issued to refuse to transfer the cassation appeal or presentation for consideration in a judicial session of the Judicial Collegium of the Supreme Court of the Russian Federation; or on the transfer of a cassation complaint, presentation together with the case for consideration in a judicial session of the Judicial Collegium of the Supreme Court of the Russian Federation (Article 291.6 of the Arbitration Procedure Code of the Russian Federation).This is the reason for the selective nature of the cassation proceedings within the framework of the second cassation - the complaint is not necessarily submitted for consideration by the Judicial Collegium of the Supreme Court of the Russian Federation (while the first (solid cassation) is obliged to consider the cassation complaint if, when filing it, the requirements of the procedural legislation for its content and attached documents).Thus, the consideration of cases in the arbitration courts of the cassation instance has many features that significantly distinguish it from the process of consideration in the courts of the first and appellate instances. This article discusses only a few of them.Often there are cases when the parties manage to take advantage of these features, which contributes to the achievement of a positive result in the court of cassation. But much more common are cases when people who do not know and do not take into account such features achieve negative results for themselves and their clients.
Criteria for classifying streaming platforms as information intermediaries in case of violation of copyright and related rights on the Internet
The rapid development of technologies, including high-speed and public Internet, has led to the emergence and development of entertainment Internet services. One of the types of such services has become the so-called streaming platforms that provide online streaming of content. Among the most popular streaming platforms are YouTube (video streaming), Apple Music and Spotify (music streaming). The more popular such platforms become, the more media content is placed on them, which increases the risk of infringement, first of all, of copyright and related rights. The most common violations of rights in relation to such results of intellectual activity as musical works (with and without text), performances, phonograms and audiovisual works. Cases of violation of rights to other objects of copyright and related rights are not rare. The ability for any registrant to upload content (for example, on YouTube) creates additional risks of inappropriate content, which is why some platforms often use the so-called “digital fingerprint system” to prevent such violations. For example, this system works on the YouTube streaming platform: “it is a copy of an audio or video file that is used to search for matches in the Content ID. It is part of an entity and one of three elements that represent your intellectual property in YouTube 's rights management system. Viewers digital prints are not available”. Content ID system allows content owners to find videos where such content is used and monetize such videos, receiving income from them, or block such videos. Having a digital fingerprint system could be one of the most effective solutions for Google LLC (which owns the YouTube streaming platform ), which is most likely interested in reducing the number of conflicts with copyright holders, including those flowing into litigation. However, not every streaming platform has the technology of a digital fingerprint system. In addition, even the presence of such a system cannot completely protect the platform from the claims of copyright holders. So, in accordance with information from the official website of the courts of general jurisdiction in Moscow, in 2021 more than ten lawsuits against Google LLC were considered in the Moscow City Court for infringement of exclusive copyright and related rights on the YouTube streaming platform. A similar situation exists with other streaming platforms, including Russian ones - VK Music (formerly BOOM), Yandex.Music (against which many disputes are also considered by arbitration courts). The most common requirement for foreign platforms is the requirement to prohibit the creation of technical conditions that ensure the placement, distribution and other use of the object (s) of copyright/related rights on the website page of the Internet information and telecommunication network (for example, case No. 3-0616 / 2021 considered by the Moscow City Court). Russian companies often, in addition to the above requirement, are required to recover compensation. This circumstance is due to the fact that it is difficult to enforce a decision of a Russian court to recover compensation from a foreign company outside of Russia: this is possible , for example, if there is an international agreement between the Russian Federation and the state in whose territory the execution of the judgment is supposed to be enforced, which provides for the possibility of mutual execution of judgments. One of the circumstances classically investigated by the court in such cases is the presence/absence of the defendant's status of an information intermediary. As stated in Part 4 of Article 1253.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), “ An information intermediary who, in accordance with this Article, is not liable for violation of intellectual property rights, may be required to protect intellectual property rights (paragraph 1 of Article 1250 , paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code) not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.  Based on the interpretation of the above provision, it seems that when considering a case in which the owner of a streaming platform is required solely to restrict access to content that violates exclusive rights, the examination of the issue of classifying such a person as an information intermediary should not be carried out by the court, since it is not included in the subject of proof due to the fact that it does not affect the possibility of satisfying the claims. However, the judicial practice of the Moscow City Court goes in a different direction. For example , let's consider case No. 3-1485/2020, in which demands were made and then satisfied to prohibit the defendant from creating technical conditions that ensure the placement, distribution and other use of musical works posted on the information and telecommunications network "Internet" according to those specified in statement of claim electronic links. Despite the above, the court on page 6 of the decision of 12/09/2020 concludes: “the defendant ... being a domain name hosting provider ..., performs the functions of an information intermediary that ensures the possibility of posting and transmitting the content of the specified site on the Internet information and telecommunications network, and as a hosting provider, it may be required to prohibit the creation of technical conditions that ensure the placement, distribution and other use of works that are the results of intellectual activity, since it is the hosting provider that is the person providing the opportunity to post material or information necessary to obtain it using information and telecommunications network, that is, the information intermediary specified in Art. 1253.1 of the Civil Code of the Russian Federation ”. A similar conclusion is made by the First Court of Appeal of General Jurisdiction with its Ruling in the above case dated 05/12/2021: “ Since the claims are filed against the defendant, who is a hosting provider ( information intermediary), and consist in prohibiting the defendant from creating the Internet information and telecommunications network on the website” technical conditions that ensure the placement, distribution, access and any other use of the protected object…”. Arbitration courts take a more detailed approach to examining the issue of the presence / absence of the status of an information intermediary for the defendants in such cases, conducting a study of this issue, first of all, if material claims were made against the defendant. The criteria according to which a person can be attributed to an information intermediary are established in paragraphs 2 and 3 of Article 1253.1 of the Civil Code of the Russian Federation: The information intermediary that transmits material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of this transfer, while simultaneously observing the following conditions:he is not the initiator of this transfer and does not determine the recipient of the specified material;he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.Also, the information intermediary that provides the opportunity to post material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of the material being placed in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;if he receives a written statement from the copyright holder about the infringement of intellectual rights indicating the page of the site and (or) the network address on the Internet on which such material is posted, he promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law. In addition to the above criteria, the Supreme Court provided the following clarifications (set out in paragraph 77 of the Decree of the Plenum of the Supreme Court dated April 23, 2019 No. 10 “On the Application of Part Four of the Civil Code of the Russian Federation” (hereinafter referred to as the Decree No. 10)): Article 1253.1 of the Civil Code of the Russian Federation are an exception to the rules established by paragraph 3 of Article 1250 of the Civil Code of the Russian Federation on the application of liability measures (in the form of indemnification and payment of compensation) for infringement of intellectual rights committed by the infringer in the course of his entrepreneurial activity, regardless of the fault of the infringer. Whether a particular person is an information intermediary is established by the court, taking into account the nature of the activities carried out by such a person (paragraph 2 of clause 77 of Resolution No. 10). As stated in paragraph 78 of Decree No. 10, the site owner independently determines the procedure for using the site (paragraph 17 of Article 2 of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection"), so the burden of proof is that the material, including the results of intellectual activity or means of individualization, is posted on the site by third parties, and not the site owner and, accordingly, the latter is an information intermediary, lies with the site owner. In the absence of such evidence, it is presumed that the site owner is a person directly using the relevant results of intellectual activity or means of individualization. If the site owner makes changes to the material posted by third parties on the site that contains the results of intellectual activity or means of individualization, the resolution of the issue of classifying him as an information intermediary depends on how active he played in the formation of the posted material and (or) whether he received income directly from the misplacement of material. Significant processing of the material and (or) receipt of the indicated income by the site owner may indicate that he is not an information intermediary, but a person directly using the relevant results of intellectual activity or means of individualization. According to the legal position of the Supreme Arbitration Court of the Russian Federation, expressed in the decisions of the Presidium dated December 23, 2008 No. 10962/08 and dated November 01, 2011 No. 6672/11, the courts should take into account the degree of involvement of the information control and modify its content. The information intermediary is not responsible for the transmitted information if it does not initiate its transfer, does not select the recipient of the information, does not affect its integrity, and also takes preventive measures to prevent the use of objects of exclusive rights without the consent of the copyright holder. In this regard, when considering similar cases, the courts need to check:whether the information intermediary received profit from activities related to the use of the exclusive rights of other entities, which was carried out by persons using its services;whether there are restrictions on the amount of posted information, its availability for an indefinite range of users, the presence in the user agreement of the user's obligation to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to remove illegally posted content;the absence of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the availability of special effective programs that allow you to prevent, track or delete posted works. (Resolution of the Intellectual Property Court in case No. А19-28503/17).Based on the foregoing, the presence of a digital fingerprint system (together with other criteria) may affect the recognition of the owner of the platform as an information intermediary. As for the profit criterion, as the Intellectual Property Rights Court pointed out in the Ruling dated 07.07.2021 in case No. А40-78274/2020, it applies not only to websites, but also to applications, even if its owner receives profit from providing access to additional functionality: “ Based on the above explanation, and also taking into account the fact that the company receives income from providing access to additional functionality of the application, which may include unlicensed content, it cannot be recognized as an information intermediary , whose liability for violation of exclusive rights is limited by the norms of Article 1253.1 of the Civil Code of the Russian Federation . Accordingly, the Court for Intellectual Property Rights further concludes that “the norms of Article 1253.1 of the Civil Code of the Russian Federation were not subject to application to the relations in question. The application by the court of appeal of these norms and the recognition of the defendant as an information intermediary is a significant violation of the norms of substantive law. Summarizing the above, when resolving the issue of the status of a streaming service in case of violation of copyright and related rights on the Internet, the above criteria play a significant role, and are used by the courts to resolve such cases in aggregate. At the same time, it seems that in order to be recognized as an information intermediary, a streaming service (its owner) must meet all the specified criteria.
Features of intellectual property rights protection in the Moscow City Court of First Instance
In 2013, the Russian Federation adopted the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Intellectual Rights in Information and Telecommunications Networks" N 187-FZ of 02.07.2013, which later became known in the mass media as the "anti-piracy law". Through the above-mentioned law, mainly amendments were made to the current procedural legislation, primarily to the Arbitration Procedure Code (hereinafter referred to as the APC of the Russian Federation), and to the Civil Procedure Code (hereinafter referred to as the CPC of the Russian Federation). Thus, the law amended article 28 of the Arbitration Code of the Russian Federation, removing from the jurisdiction of commercial courts cases referred by the same law to the exclusive jurisdiction of the Moscow City Court. Part 3 of Article 26 of the Civil Procedure Code of the Russian Federation described such cases. Finally, the law introduced a new article 144.1 of the Civil Procedure Code of the Russian Federation "Preliminary interim measures for the protection of copyright and / or related rights in information and telecommunications networks, including the Internet".The substantive legislation has also undergone some changes. In addition to the amendments made to Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection", Article 1253.1 of the Civil Code of the Russian Federation was also introduced "Features of the responsibility of an information intermediary", which is currently quite often referred to by the Moscow City Court in its decisions taken under part 3 of Article 26 of the Civil Procedure Code of the Russian Federation.However, the anti-piracy law was only the first step of the legislator in this area – over the past nine years, several more laws were adopted that could be combined with the term "anti-piracy legislation".The next law in this series was the Federal Law " On Amendments to the Federal Law "On Information, Information Technologies and Information Protection" and the Civil Procedure Code of the Russian Federation" of 24.11.2014 N 363-FZ, which expanded the list of intellectual property objects that can be applied to the Moscow City Court for protection, making adjustments to the part 2 of Article 26 of the Civil Procedure Code of the Russian Federation, stating it in the following wording (relevant today): "The Moscow City Court considers as a court of first instance civil cases that are related to the protection of copyright and (or) related rights, except for rights to photographic works and works obtained by methods similar to photography in information and telecommunications networks, including the Internet, and for which it has taken preliminary interim measures measures in accordance with Article 144.1 of this Code. In the case of consideration by the Moscow City Court of a case whose proceedings were initiated on the plaintiff's claim after the entry into legal force of a decision rendered by the same court in favor of the same plaintiff in another case on the protection of copyright and (or) related rights in information and telecommunications networks, including the Internet, the Moscow City Court the city court also resolves the issue of permanent restriction of access to the site on the Internet, which repeatedly and unlawfully posted information containing objects of copyright and (or) related rights, or information necessary for obtaining them using information and telecommunications networks, including the Internet."In addition, the law introduces the possibility of perpetual blocking of sites where information about objects of copyright and related rights was repeatedly posted in violation of current legislation, and also establishes the obligation of the site owner to post his name and contact information on the Internet.In 2017, the third anti-piracy law was adopted, namely the Federal Law "On Amendments to the Federal Law" On Information, Information Technologies and Information Protection " of July 1, 2017 N 156-FZ, which introduces regulations for blocking mirror sites on the Internet, as well as imposes additional obligations on telecom operators (internet service providers) and search engine operators.In 2020, Federal Law N 177-FZ of 08.06.2020 "On Amendments to the Federal Law "On Information, Information Technologies and Information Protection" was adopted, which improves the mechanism for protecting copyright and related rights on the Internet.Among other things, the law expanded the scope of anti-piracy legislation in general. Since the entry into force of this law, copyright holders have the right to apply for the removal of illegally posted content not only on Internet pages (websites), but also in mobile applications, including applications for computers and other devices. Thus, anti-piracy legislation includes an alternative method of judicial protection of copyright.Based on the above, we can conclude that the protection of rights in this way allows you to stop the violation in a more expedited manner than when applying to a court of general jurisdiction or an arbitration court.As indicated in the previously mentioned Article 144.1 of the Civil Procedure Code of the Russian Federation, the court, upon a written application from an organization or citizen, has the right to take preliminary interim measures aimed at ensuring the protection of copyright and (or) related rights, except for the rights to photographic works and works obtained by methods similar to the applicant's photo in information and telecommunications networks, on the Internet, prior to filing a claim.Such an application can be submitted via a special form on the website of the Moscow City Court if the applicant has an enhanced qualified electronic signature, attaching electronic documents confirming the circumstances set out in the application (as a rule, documents confirming the applicant's rights are attached, as well as the fact that they are used on the Internet).When submitting such an application in relation to websites, it is important to correctly indicate the links where the use of intellectual property objects is made, since this will depend both on the fact of satisfaction of the application itself and on the further implementation of the definition of its satisfaction.As stated in Article 141 of the Civil Procedure Code of the Russian Federation, an application for securing a claim is considered on the day of its receipt in court without notifying the defendant or other persons involved in the case. The judge or court issues a ruling on taking measures to secure the claim.Granting the above-mentioned application, the Moscow City Court also obliges the Federal Service for Supervision of Communications, Information Technologies and Mass Communications (hereinafter - Roskomnadzor) and other persons to stop creating technical conditions that ensure the placement, distribution and other use of works that are the subject of the application on the website of the information and telecommunications network "Internet" (for example Decision of the Moscow City Court of 20.06.2022 No. 2I-7329/2022 on preliminary provision of protection of exclusive rights).In addition, the Moscow City Court, in its ruling, sets a procedural time limit of up to fifteen days from the date of the ruling for the applicant to file a statement of claim on the request, in connection with which the court has taken measures to ensure the interests of the applicant. The decision itself is published on the website of the Moscow City Court no later than the day following the day of its issuance.If the court issues a ruling on refusal to take preliminary interim measures, the Moscow City Court explains the right to re-submit the specified application with the fulfillment of the stated requirements, as well as the right to file a claim in the general procedure.In addition, a private complaint under Article 331 of the Civil Procedure Code of the Russian Federation may be filed with the First Court of Appeal of General Jurisdiction.After receiving a court ruling on the adoption of preliminary interim measures, Roskomnadzor determines the hosting provider and sends it a notification indicating the name of the work, as well as the specific link by which it is made publicly available on the Internet. The hosting provider, in turn, notifies the owner of the site on the Internet within one day of the notification received from Roskomnadzor, indicating the need to remove illegal content. If the site owner does not take measures, access to such content is restricted by the hosting provider itself.If the content is not blocked within three days, Roskomnadzor blocks the content through telecom operators, by entering information about the Internet resource where the disputed content is placed in the unified register of domain names, site page pointers on the Internet and network addresses that allow identifying sites on the Internet, containing information that is prohibited from being distributed in the Russian Federation.If the applicant has not filed a statement of claim within the time limit set by the court, the court issues a ruling on the cancellation of the preliminary security.Often, there is a situation where it is enough to take preliminary interim measures to block illegal content, without filing a claim. As a rule, after the court cancels the decision to take preliminary interim measures, previously blocked links remain closed. This is a common practice for pirated websites and their mirrors.As an example, we can cite case No. 2I-4495/2022, in which on 29.03.2022 the Moscow City Court issued a ruling on preliminary provision for the protection of exclusive rights, and then, on 17.05.2022, taking into account the absence of a statement of claim, the court issued a ruling on the cancellation of preliminary provision for the protection of exclusive rights. At the same time, links to Internet pages with illegally placed content specified in the definition are still unavailable, which means that the goal of the copyright holder (to stop the violation) has actually been achieved in the shortest possible time, saving significant resources – both financial and temporary.If an application is submitted for taking preliminary interim measures under Article 144.1 of the Civil Procedure Code of the Russian Federation to combat pirated content distributed on more serious Internet resources, as a rule, claims are filed with the Moscow City Court. This ensures that the preliminary interim measures are extended until the court's decision on the case comes into force, which provides an additional guarantee. In addition, filing a claim allows you to include additional requirements for the protection of exclusive rights – for example, a claim for compensation. However, it is worth noting that in accordance with the established practice, the Moscow City Court awards compensation in a much smaller amount than Arbitration courts. A similar practice exists with respect to the amount of court costs collected for the services of a representative.It is also worth noting that the consideration of such cases in the Moscow City Court, as a rule, passes much faster than in Arbitration courts or district courts. As an example, we can cite case No. 3-0975 / 2020, in which:09.09.2020 the court issued a ruling on the preliminary provision of protection of exclusive rights;a statement of claim was filed on 24.09.2020;01.10.2020 the statement of claim was accepted;On 16.10.2020, the court issued a decision on the merits of the case. Thus, a little more than one month passed from the moment of applying to the court for preliminary protection of exclusive rights and until the decision was made. This example is not decisive – if it is necessary to perform additional procedural actions, the court may need more time to consider the case on its merits.In addition, an essential feature of the consideration of cases in the Moscow City Court is its exclusive jurisdiction.So, as a general rule, a statement of claim for the protection of exclusive copyright and related rights is filed at the place of residence of the defendant (Article 28 of the Civil Procedure Code of the Russian Federation, Article 35 of the APC of the Russian Federation). In such cases, the defendants may often be persons whose place of residence (place of registration) is in countries located outside the territory of the Russian Federation. In such a situation, filing a claim with the court at the respondent's place of residence will entail additional time and financial costs, which in turn may be an insurmountable obstacle for the person whose rights are violated.Exclusive jurisdiction in this case also includes a territorial criterion-regardless of the location of the defendant, if the dispute meets the requirements referred to in part 2 of Article 26 and Article 144.1 of the Civil Procedure Code of the Russian Federation, the dispute will be considered in the Moscow City Court. As an example, we can cite numerous court cases against the American companies Apple, Google, Swedish Spotify, etc.№№ 3-0546/2022; 3-0021/2022; 3-1511/2020). In practice, there were even cases when an American company filed a lawsuit against another American company in the Moscow City Court (cases of №№ 3-1141/2021; 3-1012/2021).Summarizing the above, we can conclude that the mechanism of protection of exclusive copyright and related rights in the Moscow City Court, established by anti-piracy legislation, allows you to stop violations of exclusive rights on the Internet in a fairly short time, including in relation to foreign companies and individuals, which is why it is an effective method of judicial protection, which is recommended for there is no immediate need to block controversial content, as well as if the violator belongs to a foreign jurisdiction.
Features of determining the infringed rights of the plaintiff when claiming compensation for copyright infringement on the Internet
The legal regime for copyright protection is distinguished by the absence of any registration requirements concerning such rights.This is due to the effect of copyright not at the national but the international level because of the copyright adoption of international conventions, to which most countries have acceded.One of the most famous and widespread is the Berne Convention for the Protection of Literary and Artistic Works, signed in Bern, Switzerland, on September 09, 1886. Russia joined this convention in 1995.When filing a lawsuit to recover compensation for copyright infringement and filing a pre-trial claim, the plaintiff must identify which particular rights have been infringed.Since the advent of the Internet and the increase of its influence on people’s daily lives, copyright law has undergone specific changes, including at the international level.To apply to the court for the protection of exclusive copyrights, it is necessary to correctly determine how the work is used (i.e., the specific rights of the plaintiff) that have been infringed.In 1996, some member countries of the Berne Convention signed the WIPO Copyright Treaty concerning the protection of works and the rights of their authors in the digital environment. This treaty is a special agreement of the Berne Convention, Article 20.The WIPO Copyright Treaty introduced a new way of using works, such as communication to the public. Article 8 of the Convention states as follows: “ Without prejudice to the provisions of Articles 11(1)( ii ), 11bis(1)(i) and ( ii ), 11ter(1)( ii ), 14(1)( ii ) and 14bis( 1) of the Berne Convention, authors of literary and artistic works enjoy the exclusive right to authorize any communication of their works to the public by wire or wireless means, including making their works available to the public in such a way that members of the public can access such works from any place and at any time of their own choosing."Although for Russia, the WIPO Copyright Treaty entered into force only in 2009, its provisions also served as a guideline for reforming national legislation.Thus, in 2001, draft law No. 166704-3 “On Amendments to the Law of the Russian Federation “On Copyright and Related Rights” was submitted to the State Duma. This bill was adopted and became law in 2004, adding to the Law of the Russian Federation of 07/09/1993 N 5351-1 (as amended on 07/20/2004) "On Copyright and Related Rights" paragraph 11 of paragraph 2 of Article 16, namely a new method use of the work (right), namely “to communicate the work in such a way that any person may have access to it interactively from any place and at any time of his choice (right of communication to the public)” (effective from 09/01/2006).This method of use also moved to Part 4 of the Civil Code, namely clause 11 of Part 2 of Article 1270 of the Russian Federation the Civil Code: “bringing the work to the public in such a way that any person can access the work from anywhere and at any time of one's own choice (bringing to the public)”.Based on the foregoing, the method of "bringing to the public" refers to the use of work on the Internet but is not the only right, the rights to which may be violated by such use.In this case, when applying to the court for copyright protection on the Internet, or when applying to the infringer with a claim for the purpose of pre-trial settlement of the dispute, it is necessary to take into account some features of the correct indication of the methods of using such work.In paragraph 4 of clause 89 of the Decree of the Plenum of the Supreme Court of the Russian Federation of April 23, 2019, N 10 "On the application of part four of the Civil Code of the Russian Federation" (hereinafter - Decree No. 10) it is indicated: providing access to this work to any person from any place at any time (for example, access to information and telecommunication networks, including the Internet) is the exercise of two powers that are part of the exclusive right - the right to reproduce (subparagraph 1 clause 2 of Article 1270 of the Civil Code of the Russian Federation) and the right to bring to public notice (subclause 11 of clause 2 of Article 1270 of the Civil Code of the Russian Federation).Thus, when applying to the court for copyright protection on the Internet, it is essential to correctly establish the specific ways the infringer used the work and formulate them correctly in the statement of claim.For this, it is necessary to use other provisions of Decree No. 10, in particular, paragraph 56: “ The use of the result of intellectual activity or means of individualization in several ways represents, as a general rule, the corresponding number of cases of the exclusive right INFRINGEMENT. At the same time, the use of the result of intellectual activity or means of individualization by one person in various ways, aimed at achieving the same economic goal, constitutes one violation of the exclusive right. For example, the storage or transportation of counterfeit goods, provided that they are completed by the actual introduction of this product into civil circulation by the same person, is an element of the introduction of goods into civil circulation and does not constitute separate violations in this case; the sale of goods with their subsequent delivery to the buyer constitutes one infringement of the exclusive right.”The above provision means that when filing claims, for example, for the recovery of compensation for the unlawful use of the exclusive right to work on the Internet in two ways of use (reproduction and communication to the public) as separate violations, it is necessary to establish the economic purpose of using the work by the infringer. If the infringer succeeds in proving the same economic purpose for several methods, the court will consider the use of the work by the defendant in two ways as one violation, which will entail a significant reduction in the amount of the requested compensation.This circumstance is confirmed by current judicial practice. For example, the Ruling of the Court for Intellectual Property Rights dated November 7, 2019, in case A40-308292/2018, states the following: communication to the public - represents, as a general rule, the corresponding number of instances of violations of an exclusive right.At the same time, the Court of Appeal did not take into account that the use of the result of intellectual activity or means of individualization by one person in various ways, aimed at achieving the same economic goal, constitutes one violation of the exclusive right (paragraph 56 of the decision of 04/23/2019 No. 10).In this case, it follows from the circumstances the possibility that the economic purpose of the defendant was to provide access to users of the music service hosted on the above-mentioned website (volume 1, sheets of case 41-77), the opportunity to listen to musical works by various authors and performers, including Dimitri Hinter. As a result, placing such works on a server (in computer memory) in digital form and providing access to their listening to visitors of the corresponding site forms, in this particular case a single set of actions, one offense.As a result, the recovery from the defendant twice of 2,350,000 rubles for actions that collectively constitute one offense contradicts the nature of the disputed legal relationship and the above legal position of the highest court outlined in paragraph 56 of the resolution dated April 23, 2019 No. 10".As can be seen from the aforementioned judicial act, applying the provisions of paragraph 56 of Resolution No. 10, the Intellectual Property Court reduced the compensation previously established by the courts by half.In addition to the previously mentioned rights to reproduce and make available to the public, special attention should also be paid to the right to distribute works.Following subparagraph 2 of paragraph 2 of Article 1270 of the Russian Federation Civil Code, “The use of a work, regardless of whether the relevant actions are performed for the purpose of making a profit or without such a goal, is considered, in particular: distribution of a work by selling or otherwise alienating its original or copies.”In this case, the right to distribute the work may also be violated if it is misused on the Internet. In the context of the norms of the current legislation and judicial practice, the distribution of a work on the Internet is understood as providing an opportunity to legally download such a work.A40-306752/2018 (upheld by the Resolution of the Ninth Arbitration Court of Appeal), stating on page 6 the following: that the Company provides a technical opportunity to distribute copies of the results of intellectual activity (RIA) on third-party resources ("Vkontakte," "Twitter," "Facebook," "Odnoklassniki," as well as by automatically generated HTML code for placement on any resources). However, the Claimant does not provide evidence that the Company allows anyone to obtain (download) a copy (copy) of any RIA .”Based on the foregoing, I believe that to correctly use the above-mentioned provisions of the Civil Code of the Russian Federation and Resolution No. 10 when applying to the court, it is necessary to independently mention this provision in the claim and the statement of claim, indicating that the plaintiff considers the use of the work by the defendant in several ways as one offense.In this case, the correct wording may also affect the amount of compensation, but already in favor of the plaintiff - the argument about the violation of several rights of the plaintiff at once, albeit considered as one violation, can be used as one of the arguments about the validity of the amount of compensation declared by the plaintiff, while how incorrect wording would lead to a significant reduction in the amount of compensation requested by the plaintiff.
Blockchain technology as a mechanism for ensuring the information reliability about intellectual property rights’ objects
The process of widespread digitalization has become one of the main trends. Every day, new intellectual property objects and technologies appear in the world, and society is actively adopting them to simplify its life. In such circumstances, properly secured protection of intellectual property directly affects the economic development of private entities, the state, and its position in the international arena.Nevertheless, a huge number of violations of intellectual property are committed daily, the lion's share of which is determined primarily by its specificity (intangible form).In the context of the development of private law relations in the field of intellectual property, special attention is paid to the possibility of using new technologies in this area, especially successfully used in other areas of society. One such technology is the so-called blockchain.This technology originated in 2008 and was first used in the Bitcoin cryptocurrency system (currently the most famous and expensive cryptocurrency in the world: the cost of one bitcoin is about 30,000 US dollars).In recent years, technology has gone from being “used by a narrow circle of people” to “introduced at the state level”. So, in 2016 in Georgia, the land property registry was transferred to the blockchain: such actions practically leveled the possibility of forging the official paper on the rights to real estate, which increased the level of attractiveness of the state for business and investment. As a result of the application of this technology, Georgia is considering the possibility of transferring all state registries in the country to the blockchain.It seems that the blockchain use in the intellectual property circulation will increase the level of its protection by transferring and giving legal force to some existing mechanisms for ensuring the reliability of the information in blockchain registries.Thus, the Chairman of the Intellectual Property Court Ludmila A. Novoselova at the intellectual property forum IPQuorum in Svetlogorsk expressed the following opinion: “The question of the fate of the evidence that appears in the blockchain system is being widely discussed today. Today there is no indication that this information has any priority in terms of evidence for the courts. <...> If presumptions are introduced, for example, that the information in the blockchain is correct unless proven otherwise, then this would be very useful for resolving conflicts in court, as it would facilitate the resolution of disputes.The advantage of the technology is its applicability to the entire classification of intellectual property objects - both objects of copyright and related rights (in particular), and objects of patent law, means of individualization. Blockchain can help ensure the reliability of information about certain properties of objects of intellectual property rights (for example, novelty and originality for objects of patent law), as well as fix the date of entering information (which is especially important for objects of copyright due to the lack of requirements for their state registration), which in the future will help to establish the original copyright holder in the event of a dispute or other conflict situation.On October 31, 2008, a person (or a group of people who signed the name Satoshi Nakamoto ) published an article on the Internet: "Bitcoin: a peer-to-peer electronic monetary system." The authors raised the question of why payments made electronically should include intermediaries such as banks? Why should the persons making such payments pay a commission to the banks? To date, the technology is still in its early stages of development. In scientific circles, there is still debate about who Satoshi is. Nakamoto and whether he really was the first person who managed to identify the basic principles of the blockchain and launch its protocol. Nevertheless, Nakamoto outlined the basic rules for the operation of this system:Information about each transaction is transmitted through the system and is available to all its participants;The currency is decentralized ( i.e. not managed by central banks like fiat money);Transactions are irreversible;Ability to make transactions anonymously;The decentralized registry is controlled by specialized computers called nodes (or nodes ).However, over time, people began to become skeptical about bitcoin, because, due to its volatility, it did not correspond to the main functions of money - a store of value and a medium of exchange. Blockchain is seen as the basis for any cryptocurrency that helps them function by bypassing banks.Using the same logic, society sensed the potential in the very ledger on which bitcoin operates – the blockchain has been running smoothly for years according to the rules on which it was based – as a decentralized record of the transactions carried out: each participant in the system interacts with other participants in the exchange of information.There is no centralized data storage in the blockchain, and all transactions are processed and verified by the registry users themselves. Thanks to the popularity of cryptocurrencies, the blockchain has proved its reliability to the whole world and has shown the possibility of mass use at all levels. In studying the practical applicability of the technology, society has come to the conclusion that the technology could significantly simplify social relations where interaction is due to the presence of grounds for mistrusting each other in matters of the authenticity of shared data.There are many similar situations in civil relations: laws in the field of private law are created, among other things, because people do not trust each other.Thus, the blockchain is understood as a distributed database consisting of a continuous chain of interconnected blocks. Decentralization of technology is due to the fact that the said database is stored simultaneously by all participants in the system. Anyone can access information about any transaction in this ledger. Users act as a collective notary who confirms the truth of the information in the database.The applicability of blockchain technology in the intellectual property rights is due to the following:First, the blockchain can help with user identification (instead of a password and other identification technologies). In addition to the standard ways of using technology in this way (gaining access to accounts in mobile applications and websites), I would like to pay special attention to the possibility of identifying a specific person for signing smart contracts (in the field of intellectual property rights circulation).Secondly, the technology can be used to record and record data. For example, the creation of a register containing information about the owners of exclusive rights to intellectual property objects, about the authors of these objects.Thirdly, the possibility of using technology to improve the efficiency and security of the circulation of intellectual rights.With the understanding of the value of blockchain technology precisely as an efficient ledger in which all types of transactions can be recorded (not just transactions with bitcoin), some have come to realize that a distributed ledger is an ideal platform for digital smart contracts.Ludmila A. Novoselova points out that “the technical side of a smart contract in the context of the blockchain is reflected in its definitions as a kind of encoding, a way of functioning of the blockchain; as a piece of code that is implemented on the blockchain platform and is initiated by blockchain transactions, and also organizes the entry of records into the database."In fact, a smart contract is expressed in the form of a program code that stores the terms of the contract and is self-executing, provided that the parties comply with the named conditions. The smart contract algorithm eliminates mediation, which includes unnecessary costs, bureaucratic procedures, and the intervention of other persons.An agreement executed in the form of a program code ensures automatic execution upon the occurrence of the conditions prescribed in such a code (the conditions of the agreement itself). Reducing the number of actions when interacting with counterparties simplifies the conduct of any business. In addition to the most popular platform for creating smart contacts Ethereum, created by Vitalik Buterin (on the basis of which more than 80% of all ICOs are carried out ), platforms such as NEO (Ethereum's Asian analog), EOS, Stellar have also proven themselves in terms of efficiency.The popularity of this technology in Russia is growing every year, it is already used to transfer rights to intellectual property. In the fall of 2020, news outlets reported on the first digital deal to transfer the rights to musical works in Russia. The transaction took place through the IPEX platform, which is part of the IPChain blockchain infrastructure. “In ten minutes, the general director of the Soyuz studio, Alexander Bochkov, agreed on the terms and signed a license agreement with Fonmix to use the track for marketing purposes, immediately receiving payment under the agreement.”The rapid growth in the development of technology has led to the emergence of companies that are engaged in the protection and protection of intellectual property using blockchain technology.One of the most promising in this area is the Bernstein platform - it provides the opportunity to register a software product in the blockchain system. The company issues a certificate of registration, and the registration procedure takes place in the presence of a notary. At the same time, the blockchain itself cannot be called public - the information in it is hidden from third parties, but only until the person who has registered his right has a legal dispute with third parties.Company platform Image Protect allows not only to protect but also to monetize visual objects of intellectual property (images, photos). It uses blockchain technology, as well as the development of artificial intelligence and neural networks. Its essence lies in the inclusion in the register of visual objects of intellectual property for a fee. Own systems monitor the Internet around the clock and allow you to identify all cases of using such images on the Internet. In addition, the platform offers mechanisms for using such images in advertising integrations, which allows the copyright holder to earn money on it.Thus, it can be concluded that blockchain technology has mechanisms that can ensure the information public reliability about intellectual property rights objects. The algorithms on which this technology is based allow us to say that the information entering the register has the property of public reliability due to the impossibility of changing this information, including by hacking the system.Despite the fact that the use of blockchain technology solves such problems as ensuring the reliability of the information contained in a distributed ledger, it has not received wide distribution in intellectual property. This may be due to the lack of legislative consolidation of the information reliability stored in such registers.
Means of proving authorship in a lawsuit
Current Russian legislation does not require state registration or any other formalities for the emergence, exercise, and protection of copyright. The legal doctrine traditionally distinguishes the creative nature of creating a work and the expression of the work in objective form as conditions for its protectability (i.e., the circumstances under which the current legislation grants legal work protection).At the same time, the procedure for voluntary state registration is provided for such objects of copyright as a computer program and a database.At the international level, this idea has been enshrined since 1908 in Article 5 of the Berne Convention for the Protection of Literary and Artistic Works, signed in 1886: “the use of copyright and their exercise” is not connected with the fulfillment of any formalities; such use and exercise do not depend on the existence of protection in the country of origin of the work ”, and is reflected in domestic legislation.Thus, in accordance with Article 1257 of the Russian Federation Civil Code (hereinafter referred to as the Civil Code of the Russian Federation), “The citizen whose creative work it was created is recognized as the author of a work of science, literature or art. The person indicated as the author on the original or copy of the work, or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code, is considered its author unless otherwise proven.According to paragraph 4 of Article 1259 of the Russian Federation Civil Code, “For the emergence, exercise and protection of copyright, registration of a work or compliance with any other formalities are not required. However, concerning computer programs and databases, registration is possible and carried out at the copyright holder's request in accordance with the rules of Article 1262 of the Russian Federation Civil Code.The above legal approach creates difficulties when it is necessary to prove one's authorship by protecting copyright in court, especially in authorship disputes. However, this approach is primarily due to the need to ensure a balance of private interest and public interest - because the number of copyright objects created daily is many times greater than the number of other intellectual property objects, establishing the obligation to register them will create significant difficulties for the authors of such objects.As pointed out by the Supreme Court in paragraphs 109-110 of the Decree of the Plenum dated April 23, 2019, N 10 "On the Application of Part Four of the Russian Federation Civil Code” (hereinafter referred to as Resolution No. 10), “ When considering a case on copyright protection by the court, one should proceed from the fact that, until proven otherwise, the author of a work is considered to be the person indicated as such on the original or copy of the work or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code (Article 1257 of the Russian Federation Civil Code), in the Register of Computer Programs or in the Register of Databases ( paragraph 6 of Article 1262 of the Russian Federation Civil Code). The need to study other evidence may arise if the authorship of a person to work is disputed by presenting relevant evidence.At the same time, there is no exhaustive list of evidence of authorship.Thus, when applying to the court for the protection of their rights, a copy of the work, on which the author's name is indicated, will be sufficient to prove the authorship of the work. In the event that opponents properly challenge a person's authorship, a more compelling range of evidence may be required to prove authorship.Unfortunately, appropriation of someone else's creative work is a common problem. The imprudent behavior of the authors may lead to a situation where a third party not only assigns authorship to work but also begins to monetize it without the consent of the real author. Meanwhile, the current legal approach does not mean that copyright cannot be enforced.To provide the right holder with a means of notifying third parties about the copyright to work belonging to him, the legislator has provided for such a method as the use of a legal protection mark. According to Article 1271 of the Russian Federation Civil Code, “To notify of the exclusive right to a work belonging to him, the right holder has the right to use the copyright protection sign, which is placed on each copy of the work and consists of the following elements:Latin letter "C" in a circle;the name or designation of the copyright holder;year of first publication of the work.Traditionally, such a designation looks like this: "Ivan Ivanov © 2022". In addition, it is also customary in business practice to indicate the period in which the copyright holder has exclusive rights to a work or the year of their acquisition - this is necessary in order not to mislead third parties about the current copyright holder in a given period, given that exclusive copyrights may be transferred.As for the ways of fixing copyrights that are not related to computer programs and databases, as judicial practice shows, one of the most effective ways to fix copyrights is the deposit of a work. This method is consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, and is actively used in courts when proving authorship of a work. The most common way of depositing is to apply to a collective rights management organization (hereinafter referred to as the CMO), acting based on Articles 1242-1244 of the Russian Federation Civil Code, with a statement on the deposit of the work.When applying to such an organization, the applicant submits the original material carrier with the work (for example, for a literary work, this may be the work itself on A4 paper), indicating the author and the date of creation of the work, and other documents provided for by the rules of a certain CMO. In addition, for the implementation of the deposit procedure, the applicant, as a rule, is subject to payment of a sum of money following the tariffs of the CMO.Upon completion of the registration of the work, as a rule, one copy of the work remains in the CMO archive, and the second copy, at the request of the author, can be provided to him with the seal of the OKUP. In addition, the author is issued a certificate indicating the date of his application for a deposit, the title of the work, as well as his surname, name, and patronymic (if any). The certificate is also signed by the head of OKUPa, a seal is affixed.However, it should be borne in mind that the deposit of work, although consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, is still not proof of authorship. The deposit is proof that a certain person identified himself as the author on a certain date.This position was reflected in the Ruling of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court), dated September 17, 2020, in case No. 305-ES20-8198, which stated the following: “The fact of the deposit by Chernus G.V. The appearance of toys as works reflected in the album of prefabricated wooden products confirms only the existence of such objects of the copyright at the time of deposit, but does not in itself confirm the right of authorship of Chernus G.V. to these objects.Copyright in work arises by creating an object that meets the conditions of protectability: being the result of the author's creative work and expressed in an objective form.With this in mind, only evidence confirming the creation of a work by a specific person (for example, testimonies, publications, drafts, evidence based on the establishment of the author's creative style, etc.) can establish the authorship of a particular person.The deposit of work is a voluntary procedure not provided for by law, with which the law does not associate the occurrence of any consequences. Depositing only confirms the existence of a copy of a specific work at a certain point.Because of the preceding, the Supreme Court quashed the final judgments of the three lower instances and remitted the case for a new trial to the Moscow Arbitration Court (the court of the first instance in this case).In essence, a deposited work is the exact copy of the work with the name of the person who calls himself the author. Still, with one difference - the deposit date is confirmed by an independent person, i.e., OKUP, which gives such evidence additional weight.As for other means of proving authorship, screenshots can be highlighted among them. In accordance with paragraph 2 of clause 55 of Decree No. 10, “ Admissible evidence is, among other things, printouts of materials posted on the information and telecommunications network (screenshot) made and certified by the persons participating in the case, indicating the address of the Internet page from which the printout, as well as the exact time of its receipt. Such printouts are subject to evaluation by the court when considering the case on an equal basis with other evidence (Article 67 of the Russian Federation Civil Code Procedure, Article 71 of the Russian Federation Arbitration Procedure Code ).For example, authorship can be confirmed by screenshots of a web page where the author himself posted the work. At the same time, for such screenshots to confirm the above facts, such Internet pages must indicate the name of the author and the date of publication of the work.For example, authors of audiovisual works (hereinafter referred to as WUAs) often use screenshots from the YouTube streaming service as proof of authorship - in such a screenshot, in the description of the video, the name of the author may be indicated. The date of publication of the WUA is automatically shown by the service without third parties' participation, which gives such evidence an appropriate degree of certainty. In the case of WUA or other media content (for example, musical works), video recording of the monitor screen can also be used (both independent and obtained by inspecting the site by a notary within the framework of paragraph 6 of clause 55 of Resolution No. 10).In order to give additional weight to the evidence mentioned above obtained independently, the persons participating in the case may file a petition for inspecting the website directly at the court session. The Supreme Court pointed out this possibility in paragraph 7 of clause 55 of Decree No. 10: 78 and clause 3 of part 1 of article 135 of the Russian Federation Arbitration Procedure Code, in the manner prescribed by these articles, the examination of evidence and their examination on the spot (in particular, to view the information posted on a certain resource of the information and telecommunications network in real-time) is entitled.As other evidence in judicial practice, there are others:Evidence of the creation process (which can be correspondence, copyright contracts, provision of an unprocessed photograph along with a camera in a dispute about the authorship of a photograph, etc.);A common piece of evidence is also a copy of the work sent by the author to himself in a sealed envelope by registered mail. The court also accepts this evidence. However, if the opponents have more probative evidence (for example, a deposited copy of the work), the court may decide not in your favor;Witness testimony can also serve as evidence of the creation of a work by a particular person on a certain date (a certain period). However, it should be noted that the court will evaluate such evidence in conjunction with other evidence, including those listed above.Summarizing the foregoing, the court evaluates all of the above evidence in their totality, depending on what was specifically presented and the degree of reliability of such evidence for the court. With an equal degree of certainty, the court decides in favor of the person who provided as evidence of the author information about the earlier indication of the authorship of such a person. Under such circumstances, in my opinion, the deposit is one of the most reliable pieces of evidence (not counting the state registration of computer programs and databases), and it is recommended to go through this procedure as soon as possible after giving the work an objective form.