Intellectual property on the Internet. We are ready to answer your questions.

    Lately, litigation regarding copyright, protecting one’s rights and online business reputation has been very popular. This is due to the legislation of the Russian Federation in the field of the Internet and copyright, and more precisely - with the complexity of its understanding and application. Laws are written in a florid language, new regulatory documents appear every day and old ones are amended. It is not always clear to users what is possible on the Internet, and for which it is possible to incur administrative, and sometimes criminal liability. However, ignorance of the laws does not exempt from liability.

    Today we answer all your questions about intellectual property. Everything you wanted to know about intellectual property on the Internet. Ask ...



    Under the cut, an example of a question and answer

    Can they prohibit the use of a domain name, as they have forbidden to use the name of a legal entity?

    To begin, we remembered the dispute Avto.ru with AVTO.ru .

    Regarding this case, I would like to note that the initial dispute was not about the domain name, but about the company name of the persons participating in the civil circulation. Claims - “prohibit the defendant from using the company name Avto.ru Limited Liability Company and the abbreviated company name LLC Avto.ru

    According to Art. 1474 Civil Codethe person has the exclusive right to use his company name as a means of individualization in any way that does not contradict the law (exclusive right to the company name), including by indicating it on signs, forms, in invoices and other documentation, in announcements and advertising, on goods or their packaging.

    Clause 3 of this article does not allow the use by a legal entity of a company name identical to the company name of another legal entity or similar to the extent of confusion if the said legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than company name of the first legal entity.

    Similar rules were in the legislation of the Russian Federation and at the time of registration of the plaintiff and defendant. So, in accordance with Article 138 of the Civil Code of the Russian Federation , a company name is a means of individualization of a legal entity and, by its legal status, is equal to the results of intellectual property. The use of means of individualization, which are the object of exclusive rights, may be carried out by third parties only with the consent of the copyright holder.

    According to paragraph 4 of Article 54 of the Civil Code of the Russian Federationa legal entity that is a commercial organization must have a company name. A legal entity whose company name is registered in the established manner has the exclusive right to use it. A person who illegally uses someone else's registered company name, at the request of the holder of the right to the company name, is obliged to stop using it and compensate for losses.

    The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 16 of Information letter dated 13.12.2007 N 122Review of the Practice of Arbitration Courts in Cases Related to the Application of Intellectual Property Law“Indicated that a special procedure for registering a company name has not been developed. In the part that does not contradict the Civil Code of the Russian Federation, until 01.01.2008, the Regulation on the company was approved by the Decree of the Central Executive Committee of the USSR and the Council of People's Commissars of 06.22.1927, according to clause 10 of which the company name is not subject to special registration, regardless of the registration of a legal entity. Consequently, a company name is considered registered from the moment of registration of the legal entity itself.

    By virtue of paragraph 11 of the aforementioned Regulation on the company, it is unlawful to use not only the identical, but also a similar company name by third parties.

    YOU made the right decision (RESOLUTION of June 22, 2010 N 4819/10), having returned the case for reconsideration to the Moscow Arbitration Court in the summer, due to the fact that the courts did not correctly assess the circumstances of the case, since the Sioux legislation is in force the company name was protected from the moment of registration of the company, and the activities of both organizations are similar.

    I would like to note that in this case, even if the court decides to violate the rights to the company name, in my opinion, this will not be enough for the registrar to be able to unilaterally cancel the domain registration, as in accordance with clause 6.3 . Provisions for the registration of second-level domain names in the RU domain The registration of a domain name is canceled before the registration expires if the court decision comes into force:
    - recognizes the administration of the domain by its Administrator as a violation of the rights of the plaintiff;
    - and (or) prohibiting the use in the domain name of the designation the rights to which the plaintiff has.
    As can be seen from the wording of the claim, it does not fall under any of the listed paragraphs of the Rules.

    Now let us dwell on the question: is it possible to oblige the use of a domain name to be prohibited? Yes, there is a practice of applying to the judicial authorities with such claims. As a rule, this is connected with the protection of rights to a company name, trademarks and other means of individualization. For example, part 2. Art. 1484 of the Civil Code of the Russian Federation provides that the exclusive right to a trademark can be exercised, inter alia, by placing a trademark on the Internet, including in a domain name and other addressing methods (a similar rule exists for appellation of origin).

    However, it should be noted that if a domain name right arose earlier than the priority of the registered trademark, then the designations cannot be registered as trademarks (paragraphs 3, para. 9, article 1483Civil Code of the Russian Federation ). Those. rights to a domain name can be claimed if the trademark is registered before the domain name.

    However, the situation is complicated by the use of foreign names in domain names. A vivid example is the Decision of the Federal Antimonopoly Service of the Ural District dated October 13, 2009 No. Ф09-7738 / 09-С6 in the case No. 60-10998 / 2009-С7 . When the court rejected the lawsuit banning the use of a domain name, including for the reason that the Russian language is not used in the domain designation.

    Difficulties also arise when defending combined names, that is, names consisting of several words. If only one word is used in a domain name, the court may recognize that it is used legally. In this case, it all depends on the purpose for which the domain name is used and on which goods and services the trademark is registered. An example where a user was forbidden to use a domain name can be the case set forth in the FAS Resolution of the East Siberian District of March 16, 2010 in case No. A19-10074 / 08. Thus, the courts are guided not only by the rules governing relations in the field of intellectual property, but also by the norms of other branches (sub-sectors, institutions) of law, in particular the rules of law aimed at protecting against unfair competition.

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