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
V. M. Smirnova
The Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia
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.
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)”.
Currently the so called battle for Soviet trademarks 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; 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. 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 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 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.
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.
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 (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 (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).
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.
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.
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. 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.
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.
 Sergeyev A. P. Battle for Soviet Trade Marks Continues. Is there a Way Out? The Law. 2013. No. 6. P. 95.
 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.
 For more details see: Sergeyev A. P. Op. cit. P. 97.
 ‘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.
 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).
 Void under Federal Law dated July 24, 2007, No. 202-FZ.
 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).
 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).
 Available at: http://www.ргаvo.gov.ru. July, 23, 2012.
 I.e. countries, to which the Paris Convention is applied.
 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).
 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.
 See: Hartfort-Empire v. United States. 323 U. S. 386 (1945).
 See: Pirogova V. Compulsory Licensing: What is in Store for Courts? Business and Law. 2010. No. 1. Pp. 44-48.
 See: Beier. EIPR. 1986. P. 363—365; Kunz-Hallstein. GRUR Int. 1981.
 Available at: http://www.cptech.org/ip/health/ cl/recent-examples.html.
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.
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