Contents of issue # 1/2015

doctor of jurisprudence, professor

Lomonosov Moscow State University

1, Leninskie Gory, GSP-1, Moscow, 119991, Russia

E-mail: civil@law.msu.ru

The reform of the Russian civil legislation is far from being completed. A new wording of Chapter 4 of the Civil Code of the Russian Federation is an important, but by no means final milestone of transformation of the civil legislation launched in the Russian Federation. The author considers reasons and legal consequences of enshrining in the legislation of companies’ classification into public and non-public, atypical versions of business entities (special-purpose company, joint-stock company of employees), identifies Russian corporate law development trends. Besides, the author demonstrates a negative influence of Anglo-American approaches to the Russian legal system, different understanding of basic legislative and doctrinal structures of the corporate law in continental and Anglo-American legal families. As a result, the author substantiates impossibility of isolated and chaotic adoption of legislative solutions from a foreign legal system built on different legal regulation principles. However, the articles makes a reservation stating that entrepreneurial corporations under Russian law should not be understood as a synonym of business entities, and the corporate law is not an element of contractual law, but a sub-branch of Russian civil law.

Keywords: legal entity, corporation, corporate law, corporate contract.

DOI: 10.12737/7244

  Full text in Russian

doctor of jurisprudence

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: gabov@izak.ru

This article analyzes some important trends and issues in the development of legal regulation of relations between the state and business. The article noted the main negative trends and challenges in the development of legislation at the present stage: the increasing instability of legal regulation; lack of priorities and evidence-based forecast, the consistency of decisions etc. These trends are accompanied by comments and examples from recent changes in the civil law. It is noted that the General result of all these negative trends is the increasing uncertainty of legal regulation, reducing its effectiveness. It is noted that the shortcomings of our legal system in part of state relations and business at the present stage amplified two significant external challenges: the creation of a Eurasian economic Union (EEU) and participation in the WTO; the adoption of a number of States sanctions against Russia in connection with the known events in Ukraine.

Keywords: government, business, civil law reform, affiliation, the balance of interests.

DOI: 10.12737/7245

  Full text in Russian

doctor of jurisprudence, professor

Lomonosov Moscow State University

1, Leninskie Gory, GSP-1, Moscow, 119991, Russia

E-mail: enterprise@law.msu.ru

The article deals with the issues of cooperation between state and business, necessity to form a unified policy in the sphere of entrepreneurship and state influence on the business, inter-branch nature of legal regulation of relations between state and business, legal means and forms of state regulation of economy, legislative basis of legal regulation of business activities, correlation of state regulation and self-regulation, concrete means of state influence upon economy. The government’s role in the process of regulation of economic relationships cannot be reduced to the function of an external regulator and controller. Developing a comprehensive and long-term concept of legal support to the current economic reforms can be considered as the strategic target and tool of legal regulation of economic relationships.

Keywords: interrelation of the government and the business, tools of legal regulation of economic relationships, the government’s role in regulation of economic relationships.

DOI: 10.12737/7246

  Full text in Russian

doctor of jurisprudence

The Constitutional Court of the Russian Federation

1, Senatskaya square, Saint Petersburg, 190000, Russia

E-mail: labour@izak.ru

The article deals with the problem of creation of the business (corporative) social responsibility conception and key elements of this conception. The functioning of the market economy in the modern society is impossible without strong ties between society and business community, social obligations of companies, corporations, firms and so on. Idea of business (corporative) social responsibility reflects these ties and is based on the philosophical doctrine of moral ideals as the goal of social progress. Business (corporative) social responsibility supposes free-will initiatory social activity of companies — activity, that is not related to commercialization. There are some areas of such activity: occupational safety, providing favourable conditions of employment, protection the environment, social security, health protection, culture and education. The author has attempted to characterize principles of companies’ social activity. These are: respect for law order, which means not only subjection to the law, but voluntary renunciation of using deficiencies of law and other law imperfections; respect for international laws; respect for human rights; concerning for moral ideals. Companies realize social responsibility in different ways. First of all through collective bargaining procedure. The next way is cooperation with government and local communities. Cooperation with non-government organizations (civil society organizations) and charity are also possible.

Keywords: business (corporative) social responsibility, social activity, moral ideals.

DOI: 10.12737/7247

  Full text in Russian

doctor of jurisprudence

Ogarev Mordovia State University

44, Polezhaev’s st., Saransk, 430000, Russia

E-mail: gpp@urf.mrsu.ru

The article discusses the problems faced by Russian entrepreneurs in the implementation of land rights. The author notes that in the transition to a new system of limited real rights must take into account the interest of business. Particular attention is paid to the analysis proposed for the introduction of the Civil Code of the Russian Federation, the two property rights to land, buildings and permanent tenure. The article highlights the prospects of these rights, noted shortcomings of the bill to amend the Civil Code of the Russian Federation, the legal model proposed legislated specified rights in rem.

Keywords: property law, legal entities, entrepreneurs, business, permanent tenure, land, real estate.

DOI: 10.12737/7248

  Full text in Russian

PhD in law, professor

The Investigative Committee of the Russian Federation

2, Tehnicheskiy pereulok, Moscow, 105005, Russia

E-mail: 1956af@mail.ru

The article substantiates the author’s conclusion to the effect that the introduction of criminal liability of legal entities is a forecast tendency of Russian criminal law policy development, and exposes objective grounds for introducing such a liability. It points out that criminal responsibility of bodies corporate is established in many countries and required by international obligations of the Russian Federation. The article contains data on the charging of legal entities in the Russian Federation with an administrative offence of illegal gratuity on behalf of a legal entity (Article 19.28 of the Code of Administrative Offences of the Russian Federation) and formulates reasons pointing out the insufficient effectiveness of the existing institution of legal persons’ administrative liability for acts of that type.

Keywords: criminal and administrative liability of legal persons, anti-bribery conventions, international obligations regarding introduction of bodies corporate’ criminal liability.

DOI: 10.12737/7249

  Full text in Russian

O. V. Gutnikov, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: civil@izak.ru

 

V. M. Smirnova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: civil@izak.ru

In modern Russia is debated the issue of legal regulation of trademarks, which are well-known in the Soviet time and freely used by many domestic enterprises for homogeneous products such as candy “Belochka”, the “Jubileynoe” cookies, chocolate “Alyonka”, cheese “Yantar”, “Druzhba”, etc. Currently has so-called battle for Soviet trademarks between rights holders, who received the trademark rights in full compliance with the Russian legislation, and the actual users, who do not have time to register them. So in the legal community are mechanisms to address issues related to trademarks: recognition of them entered into general use and lost their distinctiveness, the revocation of their registration as acts of unfair competition; the their nationalization; the introduction of prior use, their mode of collective trademarks or certification, traditional food regulation. Currently in the State Duma of the Russian Federation are considered the bills, aimed at the introduction of the right of prior use in trademarks and issuing a compulsory license. In the article are considered only the arguments against the introduction of the right of prior use and issuance of compulsory licenses in respect of trademarks.

Keywords: intellectual property, trademark, compulsory licensing, TRIPS, prior use.

DOI: 10.12737/7250

 

In modern Russia the issue has been keenly discussed on legal regulation of trade marks, which became widely known in the Soviet times and have been freely used by mane domestic enterprises to mark homogenous products (for example, “Belochka” candies, “Yubileynoe” cookies, chocolate “Alyonka”, melted cheese “Yantar”, “Druzhba”, etc.).

As Professor A. P. Sergeyev notes, ‘the majority of such designations did not enjoy legal protection in those times, as they were not registered as trade marks. Nevertheless, to simplify the terminology, they can be tentatively called Soviet trade marks (Soviet brands)”[1].

Currently the so called battle for Soviet trademarks[2] has become more intense between the rights holders, who have formalized their rights to the trademarks in full compliance with the Russian legislation, and the actual users, who have not had time to register their ownership.

For example, in the legal community they propose the following mechanism for the solution of the issues, related to the abovementioned problems: acknowledgment of trade marks, that have become common use and lost distinctiveness, cancellation of their registration as acts of unfair competition, nationalization of these trade marks; introduction in their respect of the right of prior use[3]; their transfer into the status of collective or certification trade marks, as well as into the so called traditional food registration (widely applied in the European Union countries).

The problem with trade marks has grown worse due to the fact that the RF State Duma received draft laws, aimed at the protection of interests of product manufacturers, who actually use other persons’ trade marks, if they started to use them prior to the date of these trade marks’ registration by the trade mark holders and prior to coming into force of the RF Law dated September 23, 1992, No. 3520-I ‘On Trade marks, Service Marks and Appellations of Origin of Goods’ (hereinafter – the Law on Trade Marks). The abovementioned persons preserve the right to further use of this designation under the conditions of royalty-fee ordinary (nonexclusive) license for the production of homogenous products. In accordance with the first draft law, manufacturers, who produced goods under the Soviet brands prior to their registration as trade marks, receive nonexclusive royalty-free license for them. Another draft law envisages the right of prior use for Soviet trade marks, but in fact, the text of the amendments implies the use of such marks on the conditions of royalty-fee ordinary (nonexclusive) license. This license also allows for the use of the trade marks in relation to homogenous goods (and not the very goods in relation to which the designation was originally used) and does not impose restrictions on the volumes of the manufactured products (i.e. it allows for the production expansion), which is absolutely not typical for the prior use.[4] Thus, it is evident, that it is proposed to introduce compulsory license for the trade mark.

Below we will consider only arguments, aimed against the introduction of the right of prior use and issuance of compulsory licenses in relation to Soviet trade marks.

The proposed changes contradict the legal nature of a trade mark. Trade mark is, primarily, a means of individualization of goods of legal persons and self-employed entrepreneurs (cl. 1, Art. 1477 of the RF CC), which permits to unambiguously associate specific goods and expectations about its consumer attributes and quality exclusively with a specific manufacturer. Consequently, under the conditions of legal protection of trade marks, the law grants the right to their use only to one specific right holder, with whom this trade mark is associated.

Under the conditions of legal protection of trade marks, the situation is inadmissible, when one and the same ‘means of individualization’ individualizes an indefinite bunch of various manufacturers, whose ‘legitimization’ is carried out only on the grounds of using the relevant designation prior to the priority date of the trade mark which was registered later.

Correspondingly, the introduction of the right to prior use renders the legal protection of trade marks meaningless, since it grants the right to use them to an indefinite scope of persons.

The proposed changes violate the exclusive rights of trade mark holders. The person, in whose name a trade mark is registered, enjoys the exclusive right to its use.

The exclusive right is of an absolute nature and excludes the possibility to use the trade mark by other persons without the right holder’s consent.

In accordance with the mandatory provision of cl. 3, Art. 1484 of the RF CC, no one is entitled to use, without the right holder’s consent, designations, similar to his trade mark, in relation to products, for whose individualization this trade mark was registered, or homogenous products, if as a result of such use a possibility of confusion can arise.

The rule on the right of prior use in relation to trade marks, contained in the draft laws, is, in essence, a restriction of the rights holders’ exclusive right through granting to actual users, without the rights holders’ consent, of a royalty-fee ordinary (nonexclusive) license for manufacturing homogenous products, which contradicts para. 3 of cl. 1 and para. 1 of cl. 5 of Art. 1229 of the RF CC. The draft law also indicates the possibility of initiating a legal action with the request for license issuance. This request means that the defendant commits certain actions in the interests of the plaintiff (executional legal action); from the point of view of procedural classification, it means that the relevant rules of the draft law should also be qualified as regulations on compulsory licenses.

At the same time, the issuance of compulsory licenses infringes upon the interests of the rights holders, who bear expenses on legal protection of the trade mark, on advertizing relevant products and have legitimate interest as minimum in receiving remuneration for the use of their trade marks by other persons and reimbursement of some part of their expenses and in prevention of confusion between their products and other manufacturers’ products.

It is necessary to point out that compulsory license and the right of prior use are institutes, used in the sphere of patent law. Both of them are aimed at certain restriction of the domain of the exclusive right of patent holders and exist only in relation to those objects of intellectual property that are not means of individualization (invention, a utility model, industrial design) (Art. 1361 of the RF CC), which does not contradict their legal nature. The right of prior use is applied to prevent abusive practice, which can arise as a result of exercising of the exclusive right, conferred by the patent, for example, in case of a non-use of an invention.

Art. 5 of the Paris Convention for the Protection of Industrial Property, Art. 27, 30 and 31 of the Agreement on Trade Related Aspects of Intellectual Property Rights dated April 15, 1994 (hereinafter – the TRIPS Agreement) serve the basis for introduction of the rules on compulsory licensing. But these acts envisage restrictions of the exclusive rights, granted by a patent, under the condition, that such exclusions do not unreasonably contradict the normal use of the patent and do not unreasonably infringe upon the legitimate interests of the patent holders, taking into account the legitimate interests of third persons. Such admissible restrictions of the exclusive right represent a certain monopoly in the interests of the society. For example, in accordance with cl. 2 of Art. 5a of the Paris Convention, each country – participant to the Convention shall have the right to take legislative measures providing for the grant of compulsory licenses (and what is more, only non-exclusive licenses), to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work or insufficient working.

These restrictions of the exclusive rights are not applied to trade marks on the international level. The essence of the objects of the patent rights lies in the fact that they facilitate scientific-technological progress, development and research of innovations in the most important areas (pharmaceuticals, medicine, health care, defense and security, etc.), the most versatile improvement of industrial activity and hi-tech development. During the creation and subsequent development of these objects of industrial property subsequent licenses are granted for the improvement of the object of the patent rights, which is not related to the consumers’ deception, individualization of this object. Thus, if a situation arises, when an invention which cannot be used without another invention, and which is an important engineering achievement, possessing material advantages compared to the invention or the utility model of another patent holder, it gives to the holder of the later invention the right (under certain conditions) to obtain the compulsory license in accordance with Art. 1362 of the RF CC. Among legitimate excuses for non-working (insufficient working) of a patented object there can be only arguments of a legally valid nature (including legal, technical-economic), confirmed by competent bodies. Therein lies the essence of objects of patent rights.

The legal nature of trade marks is absolutely different. They are aimed at products’ individualization, protection of the trade marks’ reputation (goodwill); they protect consumers’ interests from deception on the part of mala fide manufacturers of pirate goods in relation to the products’ peculiarities, which can induce consumers to acquire them; protect products of specific manufacturers from copy-cats and forgery.

The proposed changes violate the rights of the consumers of products, manufactured under proper designations. Trade marks, as is known, perform several functions, among which one can name individualizing (associates specific products with specific manufacturers, distinguishing them from a number of similar products), guarantee (guarantees to consumers certain quality and goodwill of products in the market), advertizing (distinguishes specifically these products in the market as possessing a certain number of positive attributes, advertized by the manufacturer), informational (associates trade marks with specific products that differ from similar products in the market), and restrictive function (prohibits other persons to use the trade marks without permission).

All these functions of trade marks are of significance not only for the rights holders, but also for consumers of relevant products, who can judge by the trade mark about the products’ manufacturer, their consumer appeal and safety for life and health.

One of the most important consumers’ rights is the right to credible information about the manufacturers and products, sold by them.

In accordance with cl. 1, Art. 10 of the RF Law dated February 7, 1992, No. 2300-I ‘On the Protection of Consumer Rights’, the manufacturer (executor, seller) must provide to consumers in a timely manner the required and credible information about the products (works, services), that ensure the possibility of their correct choice.

This right is materially violated, when several manufacturers of similar products use one and the same trade mark for homogenous products, while applying different production technologies for these products. It results in the fact that in the market they trade absolutely similar products under one and the same trade marks, but of absolutely different quality, manufactured in accordance with different recipes, etc. Such situation misleads consumers in relation to the manufacturer of the bought products, their qualitative characteristics. As a result, the presence in the market of homogenous products from various manufacturers under one and the same trade mark deprives consumers of the possibility to correctly choose products.

In essence, the rule on prior use, allowing the use of one and the same trade mark by different independent manufacturers in relation to homogenous products, materially violates the consumer right to information, guaranteed by the Law on the Protection of Consumer Rights.

Besides, royalty-fee nonexclusive (compulsory) license does not envisage the possibility of its revocation by the rights holder in case of violation of the licensee’s obligations in relation to the product quality.

This results in the actual loss of control over the quality of products manufactured under the trade mark and in denial of the consumer rights, which is inconsistent with Part II, Art. 55 of the RF Constitution.

The proposed changes are inconsistent with the requirements of certainty of legal rules. The proposed draft laws read that the right to designation is preserved ‘under the condition that such use has been carried out in accordance with the legislation in force (for the time being)’ or ‘such right has been obtained on the grounds, established by the statute’. But it remains unclear, which legislation is meant. In the USSR various enactments on trade marks[5] were formally in force, which were not actually applied, and this fact resulted in the situation, when one and the same designations were used by different manufacturers. The USSR Law dated July 3, 1991 No. 2293-I ‘On Trade Marks and Service Marks’ was never effectuated. The meaning is also dark in relation to the reference to the Law, establishing grounds, on the basis of which the right of prior use was previously granted. If it means the previous version[6] of Part II, Art. 13 of the Federal law dated December, 18, 2006 No. 231-FZ ‘On the Entry into Force of Part IV of the Civil Code of the Russian Federation’, then it is no longer in force and currently there are no ‘granted’ rights on the basis of this rule. Draft laws are specifically aimed at the introduction of the ‘new’ right of prior use, but to make this ‘new’ right conditional on the availability of the previously granted and nowadays no longer existing rights is legally wrong.

Thus, the draft laws, restricting the rights of the rights holders of the registered trade marks leave many questions and are, in essence, ambiguous, and do not comply with the requirement of certainty of legal rules.

The RF Constitutional Court has repeatedly emphasized the inadmissibility of introduction into the legislation of ambiguous legal rules. For example, cl. 5 of the Decree of the RF CC dated November, 27, 2008, No. 11-II, reads: ‘The universal principle of legal equality (equal protection of the law), enshrined in Article 19 of the Constitution of the Russian Federation, and the general legal principle of formal certainty of law, logically conditioned by it, presuppose that the statute must be clear, precise and unambiguous. Other would mean the possibility of varying interpretation and understanding of the statute, and, in essence, its arbitrary application, which would render delusive the equal right to fair justice and efficient and overall judicial protection, stemming from Article 19 of the Constitution of the Russian Federation in conjunction with its Article 46.

As the Constitutional Court of the Russian Federation has repeatedly emphasized in its decisions, the equal protection of the law and equality before the courts, as well as equality of the rights, guaranteed by the Constitution of the Russian Federation, can only be ensured under the condition of the uniform understanding and interpretation of the rules by all law enforcement officials; on the contrary, violation of the principle of formal certainty of rules allows for unrestrained discretion in the law enforcement process and inevitably leads to abuse of power, and consequently, to the violation of the principle of equality in the exercise of rights and freedoms, supremacy of the Constitution of the Russian Federation and statute (Decrees dated April, 25, 1995, No. 3-II, dated July 15, 1999, No 11-II and dated July 30, 2001, No. 13-II)’.

The proposed changes contradict civil circulation stability. As expert opinions of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation note, by the moment of the adoption of Part IV of the RF CC (2006), a number of precedents have already been formed in relation to ‘Soviet’ trade marks. By this time, the majority of such trade marks had been registered for specific rights holders, who were undertaking measures, established by the statute, to stop the use of designations, identical or similar up to confusion with their trade marks, in those cases, when it was done without their consent[7].

Thus, over the last 22 years persons, who registered their rights to the trade marks in full compliance with the current Russian legislation, have exercised their exclusive right, concluding license agreements on the use of the trade marks, belonging to them and also have been undertaking measures on their protection. In many cases, as a result of judicial proceedings, the use by other manufacturers of designations, identical to the registered trade marks or similar to them up to confusion, was terminated (often many years ago) or license agreements on their use were concluded on legal grounds[8].

The rules, proposed by the draft laws, allow for the possibility of applying new rules in relation to persons, who stopped the use of the relevant designations on the basis of the court rulings or on any other grounds in the period from 1992 to 2014. In essence, it means the possibility of review of all previous judicial decisions in relation to such cases, as well as concluded license agreements.

Thus, the introduction of the right of free use of the ‘Soviet’ trade marks by every one who used them, would mean the actual revocation of the registered property rights of today’s rights holders, destabilization of civil circulation in this area of social relations. It would be the same, if the state today initiated a large scale review and cancellation of the results of privatization that took place in the 1990-ies.

All this will have a negative impact on civil circulation stability.

The proposed changes contradict the international obligations of Russia, adopted as part of multilateral negotiations on membership in the World Trade Organization (WTO). On December, 16, 2011, the Russian Federation signed the Protocol of Accession to Marrakesh Agreement Establishing the WTO. This Protocol forms an integral part of the Marrakesh Agreement and all annexes thereto (cl. 2 of the Protocol).

The Working Party Report on the accession of the Russian Federation to the WTO agreement[9] (hereinafter – the Working Party Report) discloses in detail the procedure of application of the Protocol annexes. The obligations of the Russian Federation in relation to the national legislation compliance with the international obligations of the Russian Federation are indicated in §1202 of the Working Party Report: ‘The representative of the Russian Federation also explained to Members of the Working Party that that adoption of Part IV of the Civil Code of the Russian Federation permitted the Russian Federation to finalize codification of its civil legislation with the objectives of achieving full conformity of domestic legislation with the international obligations of the Russian Federation; amending the intellectual property laws of the Russian Federation, to keep the most effective provisions of currently applied laws, while strengthening protection where appropriate.’

Thus, in the process of accession to WTO, the Russian Federation has stipulated the certain scope of application of the provisions of the TRIPS Agreement, the Paris Convention, which have priority in application over all previous and subsequent Federal Laws, as well as over all by-law statutory and regulatory enactments.

The proposed changes contradict the TRIPS Agreement and the Paris Convention. As it follows from the draft law, the mandatory nature of the provision about the right to use trade marks under the conditions of royalty-fee ordinary (nonexclusive) license without indication of the possibility for the rights holders of such trade marks to refuse to grant such license, is, in essence, a compulsory license. But in accordance with Article 21 of the TRIPS Agreement, the fulfillment of whose conditions is mandatory for all WTO members, compulsory licenses are prohibited in relation to trade marks.

It is also necessary to note the contradiction between the right of prior use and Art. 16 of the TRIPS Agreement, which establishes that the owner of the registered trade mark has the exclusive right not to allow third persons to use in the course of trade without his consent identical or similar designations for the goods or services, which are identical or similar to those, in relation to which the trade mark is registered, when such use could result in the possibility of confusion. In case of using identical designations for identical products or services, it is considered, that there is a possibility of confusion.

The Paris Convention specifies the concept ‘confusion of trade marks’ in Art. 10.bis. For example, the Russian Federation, as a member to the Convention, is entitled to assure effective protection against unfair competition (cl. 1 of Art. 10.bis), and also to assure to nationals of the other countries of the Union appropriate legal remedies effectively to repress all the acts of unfair competition (cl. 1, Art. 10.ter.); any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

Trade marks are protected by the national legislation, which in a number of cases does not ensure the completeness of legal protection; that is why it is necessary to employ additional legal measures. And the prohibition on carrying out actions, resulting in confusion of trade marks, plays the role of such additional measure.

In particular, in accordance with cl. 2, 3 of Art. 10.bis of the Convention, the following shall be prohibited: all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor; false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor; indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

In this regard, the RF Constitutional Court in its decision of September 24, 2013, No 1342-O indicated, that the provisions of Art. 1484 of the RF CC, establishing prohibition on the use, without the rights holder’s consent, of designations, similar to his trade mark, in relation to the products, for individualization of which the trade mark was registered, or homogenous products, if as a result of such use the possibility can arise for the confusion, are aimed at realization of Part I of Art. 44 of the RF Constitution in conjunction with its Part IV of Art. 15, Part III of Art. 17, Part II of Art. 34 and Part III of Art. 55, as well as at implementation of the obligations of the Russian Federation under the international agreements (the Paris Convention, the Madrid Agreement Concerning the International Registration of Marks, etc.).

Thus, the draft laws contradict Art. 10.bis of the Paris Convention, in accordance with which the countries of the Union for the protection of industrial property[10] (including the Russian Federation) are bound to assure to nationals of the member countries effective protection against unfair competition, and not to establish in the national legislation the rule on prior use and on issuance of royalty-fee ordinary (nonexclusive) license without the consent from the rights holder (in accordance with the compulsory license model).

The proposed changes contradict also Art. 10.ter of the Paris Convention, which reads, that the countries of the Union (including the Russian Federation) undertake to assure to nationals of the other countries of the Union (nationals here mean both physical and legal persons) appropriate legal remedies effectively to repress all acts, enumerated in Art. 10.bis of the Paris Convention. Besides, they undertake, further, to provide measures to permit federations and associations representing interested industrialists, producers, or merchants, provided that the existence of such federations and associations is not contrary to the laws of their countries, to take action in the courts or before the administrative authorities, with a view to the repression of the acts referred to in Article 10.bis, in so far as the law of the country in which protection is claimed allows such action by federations and associations of that country

During preliminary negotiations between the Russian Federation and WTO member states, the Working Party Report on the accession of Russia to WTO was drafted on November, 17, 2011. In accordance with cl. 2 of the Protocol on the accession of Russia to WTO, Russia confirmed the necessity of fulfillment of obligations, enumerated in §1450 of the Report, in accordance with which the Working Party took note of the explanations and statements of the Russian Federation concerning its foreign trade regime and also took note of the commitments by the Russian Federation in relation to certain specific matters, some of which directly relate to the intellectual property rights (§§ 1201-1353 of the Report)[11].

Thus, in the process of accession to WTO, in general, Russia has harmonized its legislation in the intellectual property rights area with the rules of the TRIPS Agreement and the Paris Convention. Adoption of the draft laws, containing the rules on the right of prior use for trade marks and on the issuance without the rights owners’ consent of royalty-fee ordinary (nonexclusive) licenses on limitations of the exclusive right without remuneration payments to the rights holders, contradicts the international agreements, which introduce the ban on the acts, that can result in confusion and deceit in relation to the nature, method of manufacturing, attributes of products, their manufacturer; and also the ban on commercial activity leading to discrediting of establishments or their goods.

As was already noted, the patent legislations of the majority of the states worldwide contain the institute of compulsory license.

By the way, the TRIPS Agreement, actually enshrining in Art. 31 the compulsory license regime, does not use this notion. The absence of this terminology is also explained in Article 5 A of the Paris Convention, which envisages the non use of the institute of compulsory license by the national legislator. In particular, the USA used the possibilities of the discretionary rule of the Convention, having refused from legislative recognition of compulsory licensing. That is why, Art. 31 if the TRIPS Agreement formulates such use, as the use ‘without the authorization of the right holder’ and only in the antitrust legislation. The majority of foreign states do not use in their legislation the concept ‘compulsory license’, replacing it by the concept ‘restriction of the exclusive right’ as part of unfair competition, which can be classified as the abuse of the right[12].

The origins of reasons for inclusion into the Paris Convention of the rules of Art. 5 A can be traced in the French patent law. In order to prevent the possibility of using technologies in foreign states with the simultaneous non use of them domestically, which can adversely affect the level of technological potential of the state, the abovementioned rules on compulsory license were adopted. The rules were included into the Paris Convention during the Hague Diplomatic Conference in 1925. Later, during the London Conference of 1934 and Lisbon Diplomatic Conference of 1958 these rules were reviewed in favor of expanding the legal power of the patent holders. For example, the rule was introduced on the nonexclusive nature of the compulsory license, which confirms the legal nature of the objects of the patent rights in relation to which compulsory licenses could be issued.

The USA applies the approach, in accordance with which neither complete nonuse, nor refusal in voluntary licensing justify restrictions in the execution of the exclusive rights, based on the patent[13].

The majority of foreign states possess statistics for issuing compulsory licenses, probably with the exception of Canada and Great Britain. Up to 1977 in Great Britain and Canada there were cases of issuing compulsory licenses for the production of a number of pharmaceuticals and food stuffs.[14] In the 70-80-ies of the past century for a short period of time the interest in compulsory licenses quickened. They were considered as a legal measure for resolving disputes in the sphere of technological exchange between Western and developing countries. Well-known Western experts voiced their negative attitude towards such tendencies of technological exchange regulation for developing countries[15].

We assume, that issuance of compulsory licenses was to a large extent related to the development of international technological exchange and acknowledgement of the economic phenomenon of parallel imports. Lately the tendency has emerged to abandon the issuance of compulsory licenses in the patent law of foreign countries, with the exception of issuance of compulsory licenses for pharmaceuticals and healthcare products[16].

 

[1] Sergeyev A. P. Battle for Soviet Trade Marks Continues. Is there a Way Out? The Law. 2013. No. 6. P. 95.

[2] Ibid. Pp. 93-105; also see: Trusova Ye. A., Oreshin Ye. I. Battle for Soviet Trade Marks. Introduction of the Right of Prior Use – Is it a Way Out? The Law. 2014. No. 10. Pp. 68-75.

[3] For more details see: Sergeyev A. P. Op. cit. P. 97.

[4] ‘Fortune Favours the Brave’. The Council for Codification did not approve compulsory licensing of ‘Soviet brands’. Available at: http://zakon.ru/Discussions/kto_smel_tot_i_sel_sovet_po_kodifikacii_ne_odobril_ prinuditelnoe_licenzirovanie_sovetskix_ brendov/11998.

[5] See ref.: the Decree of the Council of Ministers of the USSR dated May, 15, 1962, No. 442 ‘On Trade Marks’, Regulation on Trade Marks (approved by the State Committee of the Council of Ministers of the USSR on Inventions and Discoveries dated January 8, 1974).

[6] Void under Federal Law dated July 24, 2007, No. 202-FZ.

[7] See Expert opinion about the draft Federal Law No. 444256-6 ‘On Introduction of Changes to Article 1484 of Part IV of the Civil Code of the Russian Federation’ (approved during the meeting of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation on May, 26, 2014, No. 130-2/2014).

[8] See Expert opinion on the draft Federal Law No. 330577-6 ‘On Introduction of Changes to Article 13 of the Federal Law ‘On the Entry into Force of Part IV of the Civil Code of the Russian Federation’ (approved during the meeting of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation on May, 26, 2014, No. 130-3/2014).

[9] Available at: http://www.ргаvo.gov.ru. July, 23, 2012.

[10] I.e. countries, to which the Paris Convention is applied.

[11] In the processes of formulation of such approach, the negative experience was taken into account of issuing compulsory licenses for trade marks by German Patent and Trademark Office soon after the World Was II, which resulted in consumers’ confusion in relation to the quality of products and services of the initial trade marks’ owners. Evidently, such rules seem to be viable in the context of flexible state regulation of compulsory licensing, which should be issued primarily for the patent rights as means of innovative development of economy and must not confuse consumers (which would happen in case of introduction of compulsory licenses for trade marks).

[12] See for example: Ohly A. Richterrecht und Generalklausel im Recht des unlauteren Wettbewerbs. Carl Heymanns Verlag, 1997. S. 17—125; available at http://www.wipo.int/wipolex/en/details.jsp?id=1679; Reckitt & Colman v. Borden. 1990. RPC 341; Baums T. Rechtsnorm und richterliche Entscheidung im Wettbewerbsrecht. Der Beitrag Rudolf Callmanns zur deutschen und amerikanischen Rechtsentwicklung. GRUR Int. 1992. S. 1; Heinemann A. Das Kartellrecht des gei stigen Eigentums im TRIPS der Welthandelsorganisation. GRUR Int. 1995. Heft 7. S. 538; Code de la propriete intellectuelle; Szoenyi C. Das franzoesische Werbe- und Verbraucherrecht. GRUR Int. 1996. Heft 2. S. 83—94; Heath Ch. Der Verbraucherschutz im japanischen Kartell-, Wettbewerbs- und Warenzeichenrecht. GRUR Int. 1993. Heft 11. S. 842.

[13] See: Hartfort-Empire v. United States. 323 U. S. 386 (1945).

[14] See: Pirogova V. Compulsory Licensing: What is in Store for Courts? Business and Law. 2010. No. 1. Pp. 44-48.

[15] See: Beier. EIPR. 1986. P. 363—365; Kunz-Hallstein. GRUR Int. 1981.

[16] Available at: http://www.cptech.org/ip/health/ cl/recent-examples.html.

 

References

Baums T. Rechtsnorm und richterliche Entscheidung im Wettbewerbsrecht. Der Beitrag Rudolf Callmanns zur deutschen und amerikanischen Rechtsentwicklung. GRUR Int. 1992.

Beier. EIPR. 1986.

Heath Ch. Der Verbraucherschutz im japanischen Kartell-, Wettbewerbs- und Warenzeichenrecht. GRUR Int. 1993. Heft 11.

Heinemann A. Das Kartellrecht des geistigen Eigentums im TRIPS der Welthandelsorganisation. GRUR Int. 1995. Heft 7.

Kunz-Hallstein. GRUR Int. 1981.

Ohly A. Richterrecht und Generalklausel im Recht des unlauteren Wettbewerbs. Carl Heymanns Verlag, 1997.

Pirogova V. Compulsory Licensing: What is in Store for Courts? Business and Law. 2010. No. 1.

Sergeyev A. P. Battle for Soviet Trade Marks Continues. Is there a Way Out? The Law. 2013. No. 6.

Szoenyi C. Das franzoesische Werbe- und Verbraucherrecht. GRUR Int. 1996. Heft 2.

Trusova Ye. A., Oreshin Ye. I. Battle for Soviet Trade Marks. Introduction of the Right of Prior Use – Is it a Way Out? The Law. 2014. No. 10.

  Full text in Russian

doctor of jurisprudence

Kutafin Moscow State Law University

9, Sadovaya-Kudrinskaya st., Moscow, 123995, Russia

E-mail: lipen.sia@gmail.com

This article discusses common problems of civil law to which attention was drawn at the beginning of the twentieth century in connection with the 100th anniversary of the Napoleonic Code. In connection with the new codification of the civil law of the Russian Empire objective and subjective factors of codification activities, social value of the Civil Code, the adequacy of regulation of civil relations, as well as to further improvement of the content of civil law according to the requirements of lifetime and constantly developing social relations were considered.

Keywords: The Napoleonic Code, science of civil law of the Russian Empire, systematization of civil law of the Russian Empire, science of civil law, social conditioning of the law, the continuity of the law, limits of legal regulation, legal technic.

DOI: 10.12737/7251

  Full text in Russian

PhD in law

National Research Saratov State University

83, Astrakhanskaya st., Saratov, 410012, Russia

E-mail: ame-roman@yandex.ru

The article considers the problem of unification of legislation that establishes the legal regime of Federal information systems. The purpose of the information system is a necessary element of its legal regime. It is primary to other elements, such as lists of information, the functionality of the system, the rights and obligations of users, information providers and the system operator. The author believes that it is impossible to establish in law the duties of citizens and organizations (such as the provision of information) that are not defined by purpose of creation of the federal information system. The author analyzes the current Federal laws on information systems, compares approaches to legal regulation of creation purposes. It is proved that the purpose of creation is to be associated with public services and government functions.

Keywords: federal information system, legal regime of information systems, purpose of creation of the information system, responsibility for provision of information, government services, public functions.

DOI: 10.12737/7252

  Full text in Russian

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: lapshina.ai@gmail.com

The article is devoted to the analysis of interactive forms of public control over the activities of public authorities in subjects of the Russian Federation and analysis of the main problems of their realization. The author comes to a conclusion that the efficiency of the public control in the interactive forms based on activity of subjects of the Russian Federation on building dialogue with citizens, on the use of modern information technologies, as well as on the willingness of the society to participate in the decision-making for State. The author proposes to continue the work on the automation of the processes of realization of public control, to expand the range of public actions of public authorities in subjects of the Russian Federation, in the case of it is possible to conduct control in interactive
forms, to construct mechanisms of monitor the activities of public authorities of subjects of the Russian Federation on the problems solving during the process of public control, to guarantee a opportunity of assessment of the citizens timely “response” of the government on such problems.

Keywords: public control, interactive forms of public control, information technologies, electronic reception room, open letter, observation with the use of the Internet.

DOI: 10.12737/7253

  Full text in Russian

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: Makov71@mail.ru

In recent years in our country the steady tendency to increase of authority of the state in the sphere of business and strengthening of economic security is observed. The state finds new opportunities of effective counteraction of crime in the economic sphere, including by means of liberalization and a humanization of the criminal legislation. Among the main acts aimed at the improvement of criminal law, can be called the Federal law of December 7, 2011 No. 420-FZ “On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation” which provides the special basis of release from criminal liability for commission of crimes in the sphere of economic activity. The specified basis is fixed in the new Article 761 “Exemption from criminal liability in cases of crimes in the sphere of economic activity” of the Criminal Code of the Russian Federation. In the explanatory note to this document it is noted that “such addition of the criminal law is caused by the necessity of its further humanization and counteraction to abuses in the field of investigation of economic crimes”. In the article mentioned Article 761 thoroughly analyzed in conformity with the requirements of the legal techniques and modern economic realities. The special attention is paid to the conditions of release from criminal responsibility provided for in second part of Article 761, given their critical assessment. It seems to the author that the legislator, providing special possibility of the exemption from criminal liability in cases of crimes in the sphere of economic activity had departed from the constitutional principle of equality of citizens before the law and court, having allowed thereby an inequality between the persons who have committed a crime.

Keywords: liberation from criminal responsibility, termination of a criminal prosecution, crimes in the sphere of economic activities, criminal responsibility of entrepreneurs, criminal legislation, economic crimes.

DOI: 10.12737/7254

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doctor of jurisprudence, associate professor

Smolensk Humanitarian University

2, Herzen st., Smolensk, 214018, Russia

E-mail: lopatina1501@mail.ru

The article provides the author’s opinion on conditional-digital extortion, the author analises criminal law and criminology issues of understanding cyber blackmail. The article provides a forecast on the transformation of the cyber extortion into serious criminal problem. Internet extortion is viewed as a form of a theft and from the position of profit motivated violate crime against property. The article provides a conclusion that conditional-digital extortion from the criminal law point of view is a property crime, from the criminological point of view is a violate crime and a coercion to act, from the victimological point of view is a criminal behaviour. The victim of the behavior does not obey the offender’s demands and the offender uses the force. Modern internet extortion demonstrates two tendencies: a trend to establish lawfull appearance of the act and a hyperlatency.

Keywords: conditional-digital extortion, cyber blackmail, embezzlement.

DOI: 10.1273/7255

  Full text in Russian

doctor of jurisprudence

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: pil@izak.ru

The article is devoted to the comparative analyses of provisions of Vienna convention on civil liability for nuclear damage of 1963 and Protocol of 1997 to the convention on civil liability for nuclear damage. In particular: the provisions on nuclear damage, channeling of liability on operator of nuclear facility, principles of liability, limits liability, limitation of actions, jurisdictional division are considered. On this bases it was concluded that international legal regulation is on the way of raise of limits liability of operator of nuclear facility, applying special drawing rights of International Monetary Fund as calculation units. Legal regulation introduced by the Protocol of 1997 to the Vienna convention on civil liability for nuclear damage more responds to the victims interests taking into account the longterms effects of a nuclear incident. The problems of the Russian Federation adherence to the Protocol of 1997 is considered.

Keywords: nuclear damage, operator of nuclear facility, principles of liability, limits liability, limitation of actions, jurisdiction, Vienna convention on civil liability for nuclear damage of 1963, Protocol of 1997 to the convention on civil liability for nuclear damage.

DOI: 10.12737/7256

  Full text in Russian