On January 17, 2021, the first in this year session of the Intellectual Property Advisory Office for exporters is held.
Three representatives joined the consultation event at once, including the deputy director of a Belarusian manufacturer of textile household products (towels). The Belarusian exporter of towels was interested in the question of the legality of a claim for a copyright object exclusive right violation in the territory of the Russian Federation – namely a graphic work created by a Russian copyright holder.
During the consultation, it was concluded that the Belarusian exporter of its products to the Russian Federation processed the work of the Russian author without the appropriate permission, produced it in an amount of more than one copy in material form, imported it for distribution to the Russian Federation, sold copies of it and demonstrated it using the Internet, thus violating the exclusive rights of an individual entrepreneur from St. Petersburg holding the right to the copyright object, whose graphic work is used as a basis for processing. All these actions fall under the norms of Article 1270 of the Civil Code of the Russian Federation.
During the meeting scheduled for mid-February 2022 the Arbitration court of the Moscow will consider the clarified claims of the plaintiff, namely a Russian individual entrepreneur, towards a Belarusian manufacturer, who at first was to pay compensation in the amount 450,000 Russian rubles, but later the sum rose up to 750,000 Russian rubles due to the plaintiff demand.
The second question concerned the possibility of reducing the compensation size for a copyright object exclusive right violation.
The answer was based on the economic activity of the defendant, who committed violations by performing successive actions and pursuing one economic goal.
Before answering, the consultant considered the following questions:
Are these several violations of the exclusive right, for each of which compensation can be reduced below the lowest limit, but not by more than 50%?
Or is it one violation of an exclusive right, for which one compensation is sought?
According to the consultant, it is possible to minimize the consequences of claims for the defendant, taking into account an approach in the Russian Federation, according to which courts tend to be guided by the Resolution of the Plenum of the Supreme Court of 23.04.2019 No. 10 (hereinafter the Resolution № 10) on the application of Part four of the Civil Code.
Paragraph 56 (general provisions) of the Resolution № 10 explains that the use of an intellectual property object by one person in various ways, aimed at achieving one economic goal, constitutes one violation of an exclusive right. According to the consultant, courts tend to be guided by general explanations, while they choose the criterion of "one economic goal".
In support of his arguments, the Patent attorney of the Republic of Belarus gave an example of the Decision of the Intellectual Rights Court of the Russian Federation dated September 24, 2020 in case No. A40-210246/2019, when two actions of Yandex LLC (RU), namely production of electronic copies and publication of two phonograms with recordings of two musical works performances, were qualified in relation to each of the works as one violation of an exclusive right committed within one economic goal.
What form of protection on the territory of the Russian Federation the defendant will choose (independently or with the help of Russian intellectual property lawyers) remains for the Belarusian exporter to decide, but the consultation allowed him to determine the main points of the claim.
