The Garant company held a regular All-Russian online seminar, which was devoted to the taxation of intellectual property (OIP). The audience was addressed by the manager of Deloitte & Touche Regional Consulting Services Limited (Deloitte), Associate Professor of the Department of Administrative Law, Faculty of Law, Moscow State University. M.V. Lomonosov, candidate of legal sciences Aleksey Valerievich Sergeev.

The first part of the online seminar was devoted to issues related to tax risks that arise in connection with the use of intellectual property objects. Alexey Sergeev spoke about how serious these risks are, and analyzed some ways to reduce them, using the latest explanations of the Ministry of Finance of Russia and the Federal Tax Service of Russia, as well as specific examples from judicial practice.

Civil law basis

On January 1, 2008, Part 4 of the Civil Code came into force, which regulates civil law issues related to the use of intellectual property. These changes are indirectly related to tax aspects.

As a result of the innovations, some definitions disappeared from the Civil Code, but remained in the Tax Code, for example, the concept of an author's contract. I would like to draw special attention to the fact that Article 1226 classifies the rights to objects of intellectual property as property rights. Accordingly, wherever property rights are mentioned in the Tax Code, intellectual property objects should also be considered. Below we will take a closer look at individual provisions of Part 4 of the Civil Code.

Let us dwell on some of the basic concepts of the Civil Code related to intellectual property.

The Civil Code defines 16 types of intellectual property objects. They can be formed into groups. The first group includes copyright (works of science, literature, art, computer programs) and related (phonograms, performances, etc.) rights; to the second - patent rights (inventions, utility models, industrial designs); to the third - means of individualization of legal entities, goods, works, services (trademarks and service marks, company names, commercial designations); to the fourth - other objects of intellectual property (selection achievements, know-how, etc.). A very important civil law moment is associated with the way of disposing of the rights to the IPO. As practice shows, any tax problems in the overwhelming majority of cases arise exactly when the taxpayer tries to dispose of these rights. With the adoption of Part 4, typified forms of disposal of intellectual property rights have been fixed, which apply to all of its objects. In fact, these are 2 main forms: an agreement for the alienation of exclusive rights and a license agreement.

An agreement on the alienation of an exclusive right implies the full transfer of intellectual property rights. In this case, the transmitting party completely loses any rights to the transferred object. Under the licensing agreement, we transfer the rights to use the OIP in a certain way, while remaining the owner of this object. A license can be either exclusive (the rightholder has the right to transfer rights to the IPO to other persons) or non-exclusive (that is, the rightholder can conclude license agreements an unlimited number of times with other persons). Moreover, there is no need to confuse relations in the part of the agreement for the alienation of the exclusive right and the license agreement for the transfer of the exclusive license, since in the first case we lose the right to own the IPO, and in the second, we remain the owner of such rights.

Let's not forget very important formal moments. An agreement for the alienation of an exclusive right, a license agreement, a sublicense agreement, not concluded in writing, are void. Such contracts often require state registration in accordance with civil. Without it, they are invalid. The license agreement must necessarily reflect the form of use of the transferred right. So, for example, with regard to a trademark, the form of use can be defined as the affixing of this mark on the packaging or mentioning it in the advertising of products, etc.

Tax disputes related to trademark rights

The number of litigations is growing, where inspectors are making claims about the costs of acquiring intellectual property. Moreover, the largest number of tax disputes today are associated with trademark rights.

Gone are the days when a trademark fee or a patent (royalty) fee was exotic to the tax inspector. Today the situation is just the opposite. The tax authorities have a fairly stable opinion that, for example, a trademark fee is actually a way to redistribute cash flows within the companies of one group. That is why the topic of tax disputes related to intellectual property objects is very relevant. This means that you need to be always ready for discussion with the reviewers.

The situation with rights to trademarks is aggravated by the fact that in this case, agreements on the transfer of intellectual property rights provide, as a rule, rather significant amounts. The exclusion of these amounts from tax expenditures by the tax authorities for some reason leads to disastrous consequences for the taxpayer.

I would like to draw your attention to the fact that agreements related to the transfer of the right to a trademark (licensed or on the alienation of an exclusive right) are subject to mandatory registration with Rospatent. If there is no such registration, then the tax authorities will consider the costs associated with acquiring the right to a trademark as not documented and not meeting the criteria of Article 252.

Regarding this group of disputes, it must be said that in 2008, judicial practice in most cases was in favor of the taxpayer. The conclusion of the judges: the civil defects of the transaction do not in any way affect its tax consequences. For example, if the agreement is not registered with Rospatent, but in fact the rights to the trademark were transferred and payments for it were actually transferred, then these costs cannot be disputed. This position was also expressed by the Supreme Arbitration Court of the Russian Federation, which has repeatedly emphasized that violations of other, non-tax sectors should not affect tax consequences, except for cases that are directly provided for by the Tax Code. However, in order to save your time and effort, you need to register, especially since this procedure is not complicated. Those organizations in which the verification has already begun, and there is no registration of the contract, can be advised to immediately send the documents necessary for registration to Rospatent in order to receive from there a corresponding notification of receipt of the documents. Subsequently, a reference to the fact that the steps aimed at the state registration of the contract by the taxpayer have already been taken can relieve the inspectors from additional claims.

The Civil Code enshrines the principle of exhaustion of rights to IPO. According to it, after the introduction of goods marked with a trademark into civil circulation by the rightholder or with his consent, further sale of such goods is allowed without the permission of the rightholder and payment of remuneration.

It is with the principle of exhaustion of the right to trademarks that a separate category of tax disputes is connected. As an example, I will cite a very illustrative court case, where the taxpayer used the model of division of sales and production of products in different legal entities, which is typical for many organizations today.

So, a foreign company - the owner of exclusive rights to trademarks under a licensing agreement transfers certain rights to trademarks to a Russian company - a distributor. The rate under this agreement ranges from 4 to 10 percent, depending on the trademark. The Russian company that is a distributor of its own production facilities does not have, therefore, it transfers the rights to trademarks to the manufacturer under sublicense agreements. The rate under sublicense agreements is already 0.1 percent. Subsequently, the manufacturing company supplies 100 percent of the manufactured products to a Russian company - a distributor, which distributes it to an unlimited number of customers in Russia.

What attracts the attention of the reviewers in the first place? Of course, there is a huge difference in the rates for licensing and sublicensing agreements. The reviewers come to the conclusion that the licensing rights of the distribution company are simply not needed, since in fact the manufacturer uses the rights to the trademarks. In this case, the inspectors refer to the principle of exhaustion of rights to a trademark, indicating that the manufacturer introduces goods marked with trademarks into civil circulation at the stage of selling all manufactured products to a distributor. For the further distribution of these products, the distributor simply does not need trademark rights. Thus, the distributor, in terms of the difference in rates under licensing and sublicensing agreements, bears the cost of paying royalties to a third party (manufacturer). In addition, sublicensing operations are deliberately unprofitable due to the difference in rates. Based on this, the tax authority concluded that the cost of paying royalties is not economically justified and is only aimed at understating the base for income tax and VAT, which does not comply with the provisions of Article 252 of the Tax Code.

In this legal proceeding, the taxpayer lost the case in terms of income tax, having suffered significant financial losses. The tax authorities presented all of the above as a scheme aimed at tax evasion and obtaining unjustified tax benefits. It should be noted that the taxpayer was able to defend its position regarding the legality of accounting for VAT deductions in the Supreme Arbitration Court of the Russian Federation. Thus, the VAT risk can now be assessed as insignificant, and the income tax risk is high.

O.A. Moskvitin,
Legal Consulting Service GARANT,
Deputy Head of User Support Department

As a rule, sellers of software discs do not enter into a separate written license (sublicense) agreement with their customers. This entails tax risks for sellers, which are mentioned in a number of letters from the Ministry of Finance of Russia (dated February 21, 2008 N 03-07-08 / 36, dated February 19, 2008 N 03-07-11 / 68). How justified is the position of the financial department? According to Article 1286, the transfer of the right to use a computer program is carried out by concluding a license agreement. At the time of the transfer of the disc, the conclusion of the contract, and therefore the transfer of rights, does not occur. Moreover, the text of the "wrapper" license, as a rule, binds the user and the creator of the program. But the disc dealer very often is not the creator of the program (the first copyright holder). In this regard, it is difficult to talk about the conclusion of a "wrapping" license (sublicense) agreement between the seller and the user. The seller can only act as a representative of the copyright holder (intermediary). Therefore, we believe that in order to use the privileges provided for in subparagraph 26 of paragraph 2 of Article 149 of the Tax Code, the seller of programs should develop a sublicense agreement and conclude it with their customers. The sublicense agreement must provide for the transfer to the user not only of the right to use the program "for its intended purpose" (Art. 1280 of the Civil Code of the Russian Federation), but also of some other powers.

Very often, taxpayers have a question related to whether they need trademark rights when importing.

Yes, we do. Since this is directly stated in. The importation of goods into the territory of the Russian Federation is a way of using trademark rights. Therefore, in order to import goods marked with a trademark into the territory of Russia, it is necessary to acquire the corresponding rights to trademarks. This position was also supported by the Constitutional Court of the Russian Federation in the Decision of April 22, 2004 N 171-O, which says that the prohibition of such a method of using the trademark of the copyright holder, as the import of products marked with such a mark on the territory of Russia, is aimed at observing the international obligations of our country in the field of intellectual property protection.

On the one hand, this is an argument in favor of the taxpayer. Suppose a company has a licensing agreement whereby the tax authorities are trying to challenge the business rationale of payments. The taxpayer can claim that he is using the rights to the trademark when advertising the relevant goods, therefore, payments for its use are economically justified.

On the other hand, we see that many taxpayers actually advertise other people's trademarks (for example, official dealers). At the same time, they do not have any licensing agreements with the copyright holder. In addition to the fact that there are civil law risks associated with the illegal use of someone else's mark, one must also remember about tax risks, since there is a free use of property rights to a trademark by a taxpayer. As we know, obtaining rights at no cost is income and is subject to income tax. And according to Article 146, it is also subject to VAT.

Accounting for expenses in taxation of profits

Let's talk about the procedure for accounting for expenses for the acquisition (creation) of intellectual property.

If the object of intellectual property is intangible assets, then its value is redeemed on a straight-line basis by depreciation over the useful life. An exception is subparagraph 8 of paragraph 2 of Article 256 of the Tax Code. In the reporting (tax) period in which they arise, based on the terms of transactions (with the accrual method), the following expenses are recognized:

Seemingly fairly simple rules, nevertheless, judicial practice testifies to the opposite. So, for example, a non-exclusive right to use software is transferred to a taxpayer, but for a long period. The tax authorities insist that in this case the payments that the payer made for this program should be accounted for evenly over the entire long term of the program. The taxpayer says that he acquires a non-exclusive right to the software and, accordingly, can write off these expenses at a time, guided by Articles 264 and 272. The judges supported this position, concluding that since a non-exclusive right was transferred, it does not matter whether it was used over a long period.

In some cases, it is impossible to determine what rights we transfer: exclusive, non-exclusive, they form intangible assets or do not form. For example, a taxpayer acquired a depository business, including some IPOs: customer databases, according to certain commercial procedures, etc. All these expenses were written off by the taxpayer at a time. The tax authorities concluded that intangible assets were actually acquired here, since the rights were exclusive. The arbitrators supported the payer, considering the fact of exclusivity of rights unproven. According to the judges, the transmitted information was open, which means that it cannot be regarded as intangible assets.

VAT exemption for the transfer of rights to IPO

Transfer of rights to IPO is subject to VAT... At the same time, from January 1, 2008, VAT benefits apply to the transfer of exclusive rights to inventions, utility models, industrial designs, computer programs, databases, topology of integrated circuits, production secrets (know-how), as well as rights to use of the specified results of intellectual activity on the basis of a license agreement .

In 2008, the Ministry of Finance of Russia issued a lot of clarifications regarding the application of this privilege. First of all, positive for the payer. Officials of the main financial department allowed not to tax the transfer of rights to these IPOs under sublicense agreements and under exclusive license agreements. Now about the letters, the explanations in which are not beneficial for the taxpayer. The Ministry of Finance of Russia concludes that the privilege does not apply to those cases when the transfer of rights is carried out on the basis of not a license agreement, but a sale and purchase agreement, that is, when the programs have already been introduced into civil circulation and in the future it is only about selling a copy of the program.

Many programs are sold on disc in appropriate packaging. Therefore, quite often the question arises: is it necessary to impose VAT on the implementation of programs in commercial packaging? Does the benefit apply to this case? Both the Russian Ministry of Finance and the Moscow tax authorities unanimously declare no. Since we are talking about the so-called "boxed" license, the terms of which are set out on the disc itself (package). In this case, the license agreement begins to operate from the beginning of the use of the licensed program, that is, from the moment when you agreed to the license agreement. According to officials, since the license agreement has not yet been concluded at the time of purchase, the privilege cannot be applied. It is possible to argue with this position, since not a word is said about the fact that the license agreement must be concluded exactly at the time of transfer of rights.

Sometimes contracts are subject to foreign law. In accordance with foreign legislation, the agreement may not be licensed. Are there grounds for benefits under Article 149 of the Tax Code? In our opinion, there is. Indeed, the Code says that the terms used in it should be determined from the current Russian legislation. Therefore, if there is an agreement subject to foreign law, but we see that in accordance with Russian law it has all the features of a license agreement, then the exemption under Article 149 of the main tax document should be applied.

Copyright agreement and UST

Article 236 of the Tax Code directly specifies that payments under an author's agreement are subject to taxation under the UST. At the same time, payments made under agreements related to the transfer of property (property rights) for use do not apply to the object of taxation of the UST.

I would like to note right away that with the adoption of Part 4, a problem arises in the interpretation of Article 236 of the Tax Code. On the one hand, the object of taxation of the UST is payments that are made under an author's agreement. On the other hand, if the subject of the agreement is the transfer of property rights (to which the Civil Code of the Russian Federation also includes property copyrights), then payments should not be subject to UST. The question arises: are these payments subject to UST?

Let's consider one of the possible options when the remuneration is paid directly to the author. The position of the Ministry of Finance of Russia is that these payments should be taxed by the UST. In this case, the logic is as follows: Chapter 24 under an author's contract means any contract related to the circulation of copyright, one of the parties to which is the author, including contracts in which a third party acts on behalf of the author. This position seems extremely controversial, since it is not clear where the Ministry of Finance of Russia makes such a conclusion, because Chapter 24 of the Tax Code simply mentions the author's agreement, the concept of which disappeared from the legislation with the adoption of Part 4 of the Civil Code.

As you can see, having made changes to the civil legislation, the legislator did not introduce them into the main tax document. Hence the problem. There is no court practice in this regard yet. Therefore, it is rather difficult to predict how the dispute with the auditors will end if the organization decides not to tax payments under copyright agreements. Another situation that is connected with this concerns the fact that copyright is valid both during the life of the author and after his death (it can be inherited). Therefore, payments can be intended not only for the author himself, but also for his heirs. The official position of the Ministry of Finance of Russia is as follows: remuneration to the author's heirs is not a payment under an author's agreement in the sense of Chapter 24 of the Tax Code and is not subject to UST and pension contributions.

The listeners ask ...

Traditionally, the second part of the seminar was devoted to answering questions from its participants. We bring to your attention the most interesting of them.

Under the contract for the creation and development of a computer program (Art. 1296 of the Civil Code of the Russian Federation), the customer received a non-exclusive right to use this program. How should the costs of creating the program, including payment for the contractor's work, be justified and reflected to the customer? The specified intangible assets remain on the balance sheet of the contractor as the copyright holder.

The fact is that if we buy a non-exclusive right to use the program, then the customer does not have intangible assets. After all, intangible assets are always an exclusive right. In the question itself, it is indicated that the program remains on the balance sheet of the contractor, that is, it is he who is its copyright holder. Accordingly, the customer may recognize the costs associated with the acquisition of the program at a time as other production and distribution costs.

I would like to note that the choice of a contract for such legal relations is not very good from the point of view of VAT, since, in accordance with the contract, the rights to software are not transferred, but they are transferred within the framework of a license agreement. Of course, you can try to apply the exemption and argue with the inspectors, referring to the fact that if the right to IPO is actually transferred within the framework of a work contract, this is a mixed contract. However, the risk is high enough that litigation cannot be avoided.

In this case, you need to refer to Part 4, which directly states that the rights to a trademark arise only from the moment of its state registration. Therefore, if a trademark is not registered anywhere, then it does not exist as such at all. This must be understood absolutely precisely. You can use some kind of logo, you can put it down anywhere, on any goods, you can advertise it. But this trademark will not be granted any legal protection on the territory of Russia. Anyone can use the same logo, and it is impossible to influence this situation without proper registration.

It is incorrect to speak about the existing tax risks associated with gratuitous use, since there is, in fact, no trademark itself. With regard to the justification of the costs of advertising an unregistered trademark, it is likely that problems with the tax authorities will arise if you talk about the costs of advertising a trademark. Here, rather, we need to talk about advertising the product itself, and the logo that is applied to it should be considered a means of individualizing this product. In this case, the costs are likely to be recognized as economically viable.

Can a license agreement signed in 2008, but registered in 2009, extend its effect to 2008 and serve as the basis for accepting to expenses the amounts paid in 2008 for the right to use the trademark in 2008?

This question is very interesting, because in practice, often a lot of time passes between the moment of signing the contract and the moment of its registration, and payments under this contract are already in progress. In accordance with the Civil Code, we can extend this agreement to relations that arose before the moment of its state registration. To reduce tax risks, it is possible to recommend a clause in the agreement that it extends its effect to the relations of the parties that arose from the moment the production of goods marked with a trademark began, or, for example, from the moment the payments began. If there is no such clause at the present time, then there is nothing to prevent this clause from being introduced now by drawing up an appropriate supplementary agreement, where the condition on the entry into force of the treaty will be changed accordingly.

L.A. Kotova,
Deputy Head of Division of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

Indeed, in accordance with paragraph 1 of Article 236 of the Tax Code, the object of taxation of the UST for taxpayers-organizations are, among other things, remuneration under copyright agreements.
In Chapter 24 of the Tax Code, a copyright agreement means any agreement considered in part 4 of the Civil Code and related to the circulation of copyright, provided that one of the parties to such an agreement is the author.
Thus, under contracts providing for the transfer by the author of the right to use his work within the limits established by the contract, the tax base for the UST is determined taking into account the costs provided for in Article 221, and the UST is not paid from the amounts of remuneration under such contracts in the part to be credited to the Social Tax Fund. insurance of the Russian Federation (clause 3 of article 238 of the Tax Code of the Russian Federation).
In the case of payment, for example, of remuneration to the heir of property copyright, taking into account the above, the remuneration received by him is not subject to UST taxation on the basis of paragraph 3 of paragraph 1 of Article 236 of the Tax Code.

Intellectual property- in a broad sense, the term means a temporary exclusive right enshrined in law, as well as personal non-property rights of authors to the result of intellectual activity or means of individualization. The legislation that defines intellectual property rights establishes a monopoly of authors on certain forms of using the results of their intellectual, creative activity, which, therefore, can be used by others only with the permission of the former.

Right intellectual property

Major institutions

Copyright Related rights Presumption of authorship Patent Law Invention Utility model Industrial model Brand name Trademark Name of the place of origin of goods Commercial designation Know-how (production secret) Protection of new plant varieties

Special kind of rights

Database Integrated circuit topologies Breeding achievement

Concept

The term "intellectual property" was occasionally used by theorists - lawyers and economists in the 18th and 19th centuries, but it came into wide use only in the second half of the 20th century, in connection with the signing in 1967 in Stockholm of the Convention establishing the World Intellectual Property Organization (WIPO). According to the founding documents of WIPO, “intellectual property” includes rights related to:

Later, exclusive rights related to geographical indications, new varieties of plants and animal breeds, integrated circuits, radio signals, databases, domain names were included in the scope of WIPO's activities.

Laws on unfair competition and trade secrets are often referred to as "intellectual property", although they do not represent exclusive rights by design.

In jurisprudence, the phrase "intellectual property" is a single term, the words included in it cannot be interpreted separately. In particular, “intellectual property” is an independent legal regime (more precisely, even a group of regimes), and does not represent, contrary to widespread misconception, a particular case of property rights.

Types of intellectual rights

Copyright

Copyright regulates relations arising in connection with the creation and use of works of science, literature and art. Copyright is based on the concept of "work", meaning the original result of creative activity that exists in any objective form. It is this objective form of expression that is subject to copyright protection. Copyright does not apply to ideas, methods, processes, systems, methods, concepts, principles, discoveries, facts.

Related rights

A group of exclusive rights, created in the second half of the XX - beginning of the XXI centuries, modeled on copyright, for activities that are not creative enough to extend copyright to their results. The content of related rights differs significantly from country to country. The most common examples are the exclusive rights of performing musicians, phonogram producers, and broadcasting organizations.

Patent Law

Patent law is a system of legal norms that determine the procedure for the protection of inventions, utility models, industrial designs (often these three objects are combined under a single name - “ industrial property») And selection achievements through the issuance of patents.

Rights to means of individualization

A group of intellectual property objects, the rights to which can be combined into one legal institution for the protection of marketing designations. Includes concepts such as: trademark, company name, appellation of origin. For the first time, legal norms on the protection of means of individualization at the international level were enshrined in the Paris Convention for the Protection of Industrial Property, where a greater part of the convention is devoted to trademarks than to inventions and industrial designs.

The right to trade secrets (know-how)

Production secrets (know-how) are information of any nature (original technologies, knowledge, skills, etc.) that are protected by the trade secret regime and can be purchased and sold or used to achieve a competitive advantage over other business entities.

Protection of new plant varieties

A system of legal rules that regulate the copyright of new plant varieties by breeders through the grant of patents.

Unfair competition

Protection against unfair competition is classified as intellectual property in clause VIII of Art. 2 of the Convention Establishing WIPO. The legal doctrine has not developed a single concept of unfair competition. At the same time, there is a classification of acts of unfair competition, which is given in paragraph 3 of Art. 10-bis of the Paris Convention for the Protection of Industrial Property. In particular, the following are prohibited:

• all actions capable of causing confusion in any way with respect to a competitor's business, products or industrial or commercial activities;
• false statements in a business that could discredit a competitor's business, products, or industrial or commercial activities;
• indications or statements, the use of which in carrying out commercial activities could mislead the public as to the nature, method of manufacture, properties, suitability for use or quantity of goods.

Ideological foundations of intellectual property

The reasons why states enact national laws and join as signatory states to regional or international treaties (or both) governing intellectual property rights are usually based on the desire to:

• through the provision of protection, create an incentive for the manifestation of various creative efforts of thinking;
• to give such creators official recognition;
• reward creative activity;
• to promote the growth of both domestic industry or culture and international trade, through treaties providing multilateral protection.

Types of violations of intellectual property rights

Violations of various types of intellectual property rights include:

• distribution of objects using the methods described in patents (often even in the case of an independent invention);
• other.

In Ukraine, the protection of intellectual property rights is the activity of state-authorized executive and judicial authorities on the recognition, renewal and elimination of obstacles that hinder the subjects of intellectual property rights from exercising their rights and legitimate interests, provided by law. First of all, I would like to dwell on the legislation that regulates legal relations in the field of protection of intellectual property rights and provide a short overview of the norms of civil, administrative, criminal, customs legislation and special laws in the field of intellectual property, which provide for judicial and administrative methods of protecting intellectual property rights. and also establish civil, administrative and criminal liability for violation of these rights.

Judicial protection of intellectual property rights is carried out by courts of general jurisdiction, economic courts of Ukraine, and in the field of public law relations - by administrative courts, the system of which is being formed today and in which the Supreme Administrative Court of Ukraine is already actively working.

Responsibility for an offense in the field of economic management is defined in the Economic Code of Ukraine, in accordance with which the following types of economic sanctions are applied:

• compensation for damage;
• penalties;
• operational and economic sanctions.

The special legislation of Ukraine on intellectual property issues also defines a lot of ways to protect intellectual property rights. As a rule, the owner of the infringed intellectual property rights can use not any, but some specific way of protecting these rights. Most often it is directly determined by a special norm of the law or follows from the nature of the offense committed. More often, however, the owner of intellectual property rights is given the choice of how to protect it.

The Criminal Code of Ukraine establishes criminal liability for violation of intellectual property rights in the form of a fine, deprivation of the right to hold certain positions or engage in certain activities, correctional labor, confiscation of property, restriction or imprisonment for a certain period.

Administrative liability for violation of intellectual property rights, provided for by the Code of Ukraine on Administrative Offenses, applies, in particular, when:

• violation of intellectual property rights;
• taking actions that constitute acts of unfair competition;
• illegal distribution of copies of Audiovisual works, phonograms, video games, computer programs, databases;
• violation of legislation that regulates the production, export, import of discs for laser reading systems, export, import of equipment or raw materials for their production.

International protection of intellectual property

The World Intellectual Property Organization (WIPO), founded in 1967 and since 1974, is the United Nations specialized agency for creativity and intellectual property, is developing and protecting intellectual property throughout the world.

WIPO promotes the signing of new international agreements and the modernization of national legislation, promotes administrative cooperation between countries, provides technical assistance to developing countries and maintains services that facilitate the international protection of inventions, marks and industrial designs. WIPO has a center for arbitration and mediation. Since 1999, WIPO has provided dispute resolution services for the registration and use of the most common typical Internet domain names (.com, .net, .org). WIPO administers 21 agreements that cover the main aspects of intellectual property. The key agreements are the Paris Convention for the Protection of Industrial Property (), the Berne Convention for the Protection of Literary and Artistic Works (), the Lisbon Agreement for the Protection of Denominations of Origin and Their International Registration (), and the Hague Agreement Concerning the International Deposit of Industrial Designs ().

In 2000, WIPO established the annual International Intellectual Property Day, which aims to clarify the role of intellectual property in development.

Public Purposes of Intellectual Property

Finance

Intellectual property rights allow intellectual property owners to benefit from the property they have created by providing financial incentives to create and invest in intellectual property and, in patent cases, pay for research and development.

The economic growth

The Anti-Counterfeiting Trade Agreement states that "effective enforcement of intellectual property rights is critical to sustainable economic growth across all industries and around the world."

A joint research project between WIPO and the United Nations University on assessing the impact of intellectual property systems in six Asian countries showed "a positive correlation between strengthening the IP system and subsequent economic growth."

Economists have also shown that IP can be a barrier to innovation if innovation is harsh. IP creates economic inefficiency in the case of a monopoly. An obstacle to channeling resources towards innovation can arise when monopoly profits are less than the improvement in the welfare of society. This situation can be seen as a market failure, as well as a question of appropriation.

Morality

In accordance with article 27 of the Universal Declaration of Human Rights, “everyone has the right to protection of his moral and material interests arising from scientific, literary or artistic works of which he is the author”. While the relationship between intellectual property and human rights is complex, there are arguments for intellectual property.

Arguments for Intellectual Property Morality:

The writer Ayn Rand argues that protecting intellectual property is a moral issue. She is convinced that the human mind is itself a source of wealth and survival, and that all property it creates is intellectual property. The violation of intellectual property, therefore, does not differ morally from the violation of other property rights, which endangers the very process of survival and, therefore, is an immoral act.

Russian legislation in the field of intellectual property

In Russia, on January 1, 2008, part 4 of the Civil Code entered into force (in accordance with Federal Law No. 231-FZ of December 18, 2006), hereinafter the Civil Code of the Russian Federation, Section VII "Rights to the Results of Intellectual Activity and Means of Individualization", which defines the intellectual property as a list of the results of intellectual activity and means of individualization, which are provided with legal protection. Thus, according to the Civil Code of the Russian Federation, intellectual property is

You've probably come across such an inscription on Youtube as “the video is blocked by the copyright holder”. In such cases, all that remains is to sigh in annoyance and exclaim that, they say, "these copyright holders do not let them breathe freely." But when you write, create something, you yourself are faced with piracy, you are already on the other side of the barricades. Indeed, what is the logic? If you like a singer, for example, why not support him financially by buying a new album? The performers' revenue suffers greatly from illegal copying and distribution of songs. In the end, it may come to the point that it will be unprofitable to pursue a career. So that cultural figures (writers, artists and other professions) can defend their rights and stop the loss of revenue, there is the concept of "intellectual property". And it is protected by law.

What is Intellectual Property

Intellectual property is the legally protected right of a person (physical or legal) to a product of mental activity. Suppose a writer wrote a novel and entered into a contract with a film company to allow the plot of this book to be used in a new film. Then both parties - the writer and the filmmakers - will be subjects of intellectual property rights. A writer (author, performer, inventor ...) is called a creator. The film company or other persons interested in benefiting from its property and having entered into an agreement with it are called the copyright holders. The object of legal relations is the right to a work (picture, article, film ...). In this case - to borrow the plot of the book.

But all things cannot be called creation. The concept of "intellectual property" is applicable only to such objects:

• literature, scientific works and works of art;
• reports and television programs;
• sound recordings and other performing activities;
• inventions, technologies, trade secrets (know-how);
• industrial designs - significant improvements in the performance or design of existing products;
• trademarks, emblems and other brand names;
• software for electronics (from firmware to games);
• objects of related rights.

The World Intellectual Property Organization has been operating since July 4, 1967 to this day. She is engaged in the protection of works, the issuance of patents, issues of creativity. There is also the All-Russian Intellectual Property Organization.

Types of intellectual property

Intellectual property includes several types, depending on the object and the copyright holder:

• Copyright,
• related rights,
• patent law,
• the right to brand uniqueness,
• the right to trade secrets.

Copyright

Copyright governs the use and creation of works of art, scientific works, and literature. It applies only to material objects, that is, it does not include verbal constructions: sayings, assumptions, methods, etc., and protects only works - unique products of the creator's life in any form (text, audio ...). But this is not only the right of authorship, but also others:

• personal non-property:
  • the right to a name (if you are a celebrity or have a pseudonym. For example, Verka Serduchka);
  • the right to protection of reputation;
  • the right to disclosure;
• property:
  • the right to use the work in any form and in any way;
  • the right to copyright royalties.

Related rights

Related rights were created to regulate issues related to, for example, the translation of texts from foreign languages, the production of phonograms, covers (re-songs of songs), that is, for works that are not entirely copyrighted, but still creative and unique.

Patent Law

Patent law protects the author's rights to an invention, design solution. In other words, industrial property. Recently, this type of intellectual property has begun to act on achievements in the field of breeding (breeding new varieties of plants) and, accordingly, genetic engineering. Such a right is formalized by issuing a patent - a document that indicates the name of the invention and the name of the author so that no one can steal and copy the achievement.

Rights to brand uniqueness

Brand uniqueness includes emblems, company names, logos, even store signs in your yard. Organizational identity rights formally include:

• the right to a trademark;
• the right to a brand name;
• the right to an appellation of origin. This means that the manufacturer indicates the place of manufacture of the product in its name, since its properties are associated with the natural conditions of that area or with other territorial features (for example, champagne was historically made in the French province of Champagne, where special grape varieties grow. Hence the name).

It is important for producers of shawls to register the place of origin of the goods: Orenburg downy shawls are made in this city using a special technology and in a peculiar style.

The right to trade secrets

Secret technologies are trade secrets. This kind of mystery allows the manufacturer to earn extra money on the interest in his products (remember the movie "Charlie and the Chocolate Factory", where no one could understand what Willy Wonka's chocolate was made of, because he kept the recipe as a trade secret). Such know-how of technology can be bought / sold ... or found out for free.

How to Obtain Intellectual Property Rights

The human right to the result of his work is recognized by the law a priori. But in order to protect the object from being used by others, it is better to formalize your authorship and associated rights.

Registration of works (copyright)

If you need to register your work, they contact a notary or one of the special law firms. In any case, an identifiable copy must be submitted. It is important that it must be exactly material, in digital form they simply will not be accepted from you. That is, if you register authorship for a book, you need to submit a printed text, for a piece of music - sheet music. It is better to bring also a digitized copy on an information medium. This will allow you to later prove that you are the creator. There are separate requirements for textual works: they must be printed on A4 sheets with a font of at least 12 pt on one side of the page. And also the work should have a title page indicating the full name of the author, city of residence, title of the work and year of writing.

When registering, it is necessary to agree on the conditions with the copyright holder (for example, with the publisher, if the book has been published) and sign an agreement. You must have the contract in your hands in duplicate. It is used as proof of authorship. You can register your work in a special register with the assignment of an international number, however, according to current legislation, this is not mandatory.

Registration is a paid procedure, but affordable. Rates depend on the place of registration. For example, registration of copyright for a song will cost about 500 rubles.

The application, the receipt for payment of the state duty and the contract are taken to the copyright department of the selected institution.

Registration of other forms of intellectual property

If you register an object of the right of corporate uniqueness (trademark, etc.), then you must clearly depict it and attach it to the application. You need to contact Rospatent (Berezhkovskaya embankment., 30, building 1, Moscow, Russia, G-59, GSP-5, 123995), it registers the person's rights to inventions, production samples and trademarks. All items of corporate uniqueness registered by Rospatent are recorded in the Register of Intellectual Property Items. The database is in the public domain.

Photo gallery: samples of documents for registration of intellectual property rights

An application for registration of copyright is written in a standard form, which will be issued upon application. The agreement between the author and the copyright holder is called a copyright contract. For the registration of intellectual property rights, a state fee is charged.

Duration of the exclusive right

Copyright is valid until the moment of transfer or until the end of the life of the author. For another 70 years after his death, his heirs have the rights. The situation is different with commercial properties. In case of non-payment of annual state fees for maintaining a patent in operation, it can be terminated before the expiration of the "expiration date".

Table: duration and renewal of exclusive rights

Name of the object of exclusive rights	Initial validity period	Renewal option
Invention patent	20 years from the date of application	For no more than 5 years, if the invention is a medicinal product, pesticide or agrochemical, for the use of which a permit is required.
Utility model patent	10 years from the date of application	-
Design patent (most often design)	5 years from the date of application	For 5 years at the request of the patent owner (plus the fact that there can be many such applications). But no more than 25 years in total.
A work created by one author (no co-authors)	Throughout the author's life and 70 years after his death	-
Work created in co-authorship	Throughout the life of the author and co-authors and 70 years after the death of the last co-author	-
A work created anonymously or under a pseudonym	70 years from the date of the first printing	-
A work created by an author who participated in the Great Patriotic War or worked during this period	-	Additionally extended for 4 years
A work of an author who was repressed and then rehabilitated	70 years since rehabilitation	-
Work printed after the death of the author	70 years from the date of the first printing	-

How intellectual property can be used

It so happened that now good ideas are worth millions. For example, many film companies pay good money to portray the plot of a film. If you have a rich imagination, then this is a chance to earn extra money.

If you are the author of intellectual property, then its use will not be a problem for you. The owner can do anything with it. For a simple layman, this will be problematic. To provide him with this opportunity (paid or free - here you decide for yourself), you can:

• fully transfer (sell) intellectual property rights. This is called alienation of exclusive rights, because after the transfer, you will no longer be able to use and dispose of this creation as an author, but the very fact of authorship will remain;
• conclude a license agreement. Then the third party will be able to use intellectual property strictly to the extent described in the contract. The right of disposal and ownership remains with you. A license can be:
  • exceptional. Then you will not be able to enter into other similar contracts;
  • non-exclusive. You can apply for an endless variety of licenses and earn more.
• waive rights in favor of another person or state.

A person who owns an intellectual property right can authorize others to use it under a license

Alienation of the exclusive right

One hundred percent sale of intellectual property is made by written agreement. It is necessary to indicate the amount of the remuneration. In special situations, such an agreement must undergo state registration (you will need to contact the Federal Service for Intellectual Property and report the changes made):

• when one of the parties announced the need for registration;
• if the property must be registered;
• if the court so ordered;
• if you inherited the property.

Must be registered:

• inventions;
• utility models;
• industrial designs;
• breeding achievements;
• trademarks;
• service marks;
• appellation of origin.

The Skype logo belongs to one owner, and the copyright to the program belongs to another.

Skype was developed by entrepreneurs Niklas Zennström Janus Friis. The trademark belonged to Skype Limited, which was founded together by men. After it was sold, the ownership passed to Microsoft, which commercially benefits from the use of the logo. But copyright was not alienated. There are different types of intellectual property rights for brand and authorship.

Disclaimer of the exclusive right

To waive the exclusive right, submit an application to the Federal Service for Intellectual Property (Rospatent). If you wish, you can only waive part of the rights. For example, allow non-commercial use of your work.

Intellectual property valuation

Intellectual property valuation can be widely applied in a company's market strategy. With its help, they reduce income tax, increase the value of the enterprise.

The cost of an intellectual property object has its own life cycle

Evaluation features:

• the value of the appraised object changes over time and is determined on a specific date (principle of change);
• the cost depends on external factors that determine the conditions for their use, for example, due to the action of the market infrastructure, international and national legislation, state policy in the field of intellectual property, the possibility and degree of legal protection (the principle of external influence);
• the cost is determined based on the most probable use of the object, as a result of which the calculated value will be maximum (the principle of the most efficient use).

In the assessment procedure, take into account the uniqueness of the objects and their current use, the costs of production and implementation, the degree of development, the possibility of legal protection, and the receipt of remuneration for use.

How can property be protected and what is the responsibility for violation

Here is one very famous example: when the Russian-French artist Marc Chagall (he was stubbornly not recognized at home, so he immigrated to France) at the beginning of his career wanted to sell a couple of his paintings, he brought them for evaluation. There they were shamelessly taken away from him. The artist in our view, who knew about his intellectual property rights, would have already declared injustice long ago, but Marc Chagall could not do anything.

As they say, you need to learn from the mistakes of the past. Today, the most powerful proof of your authorship will be the "presumption of authorship" - the earliest document available. He will be the original. The proof of this presumption can be an agreement with the copyright holder, manuscripts, registration of a work in your name in the international register.

Video: Protecting Intellectual Property Rights (Part 1)

The best defense is an attack, therefore it is carried out by sending a claim and demands to the offender:

• on the recognition of the right;
• on suppression of actions that violate the right or create a threat of its violation;
• for damages;
• on the seizure of the material carrier - claims are sent to its manufacturer, importer, custodian, carrier, seller, other distributor, unscrupulous purchaser;
• on the publication of a court decision on the committed violation with an indication of the actual copyright holder - to the infringer of the exclusive right.

If it was possible to prove your right and its non-observance, the perpetrator will be brought to justice. It can be like this:

• compensation for damages or payment of compensation for each case of violation of the right. The size is determined by the court:
  • from 10,000 to 5,000,000 rubles;
  • double the value of the copy or ownership;
• if the objects are counterfeit or false information is indicated on them - an administrative fine in the amount of 1,500 to 2,000 with confiscation of the counterfeit;
• if the value of copies or ownership rights exceeds 50,000 rubles:
  • a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months;
  • compulsory work for a period of 180 to 240 hours;
  • imprisonment for up to two years.
• if the violations were committed by a group of persons, by prior conspiracy or on an especially large scale - imprisonment for up to six years with a fine of up to 500 thousand rubles or in the amount of wages or other income for a period of up to three years or without it.

Video: Protecting Intellectual Property Rights (Part 2)

So, you can make good money on the sale of intellectual property rights. But many people do not want to pay to use an idea or object, even if they are worthwhile, and simply copy them. In this case, the copyright holder can complain about a violation of copyright or other rights. The only problem with protecting intellectual property is that you must first catch the violator and prove his guilt. But do not be afraid to defend your rights: if you are truly an author, the law is on your side.

All objects of intellectual property rights are subdivided in accordance with legal institutions, the norms of each institution regulate relations arising in its sphere of action.

The norms of legal institutions provide legal protection of the object of intellectual property, and their violation entails the need for legal protection of the result of intellectual activity. To be recognized as an object of legal protection, it must meet certain conditions of protection, which are established by each institution of intellectual property law in relation to its objects.

The object of Intellectual Property Rights is the result of intellectual activity.

The objects of IPR are:

1) works of science, literature and art regardless of the merits and purpose of the work, as well as the way of its expression (written, volumetric-spatial form or in the form of an image, sound and video recording) (Article 1259 of the Civil Code of the Russian Federation).

These are the following works:

Literary;

Dramatic and musical-dramatic, screenwriting;

Choreographic and pantomimes;

Musical with or without lyrics;

Audiovisual;

Painting, sculpture, graphics, design, graphic stories, comics, etc .;

Decorative and applied and scenographic art;

Architecture, urban planning and landscape gardening, including in the form of projects, drawings, images and models;

Photographic and obtained by methods similar to photographs;

Geographic, geological and other maps, plans, sketches and plastic works related to geography, topography and other sciences;

- utility models, according to Art. 1351 of the Civil Code of the Russian Federation, a utility model is a technical solution related to a device.

A utility model is granted legal protection if it is new and industrially applicable:

Legal protection is not provided as a useful model:

- decisions concerning only the appearance of products and aimed at meeting aesthetic needs;

Topologies of integrated circuits.

2) in the field of artistic design:

- industrial designs. According to Art. 1352 of the Civil Code of the Russian Federation industrial model - it is an artistic and design solution for a product of industrial or handicraft production, which determines its appearance. An industrial design is granted legal protection if, by its essential characteristics, it is new and original.

Legal protection is not provided as an industrial sample:

- decisions based solely on the technical function of the product;

Objects of architecture (except for small architectural forms), industrial, hydraulic engineering and other stationary structures;

Unstable objects made of liquid, gaseous, bulk or similar substances.

In addition, they cannot be subject to patent rights:

- ways of cloning a person;

Methods for modifying the genetic integrity of human germline cells;

The use of human embryos for industrial and commercial purposes;

Other decisions that run counter to public interests, principles of humanity and morality.

Objects of the right to non-traditional objects of intellectual property:

Breeding achievements;

Topologies of integrated circuits.

An integrated microcircuit is a microelectronic product, the elements of which are formed in the volume or on the surface of the material that serves as the basis for the manufacture of such a product (Article 1448 of the Civil Code). Integrated circuit topology is the spatial-geometric arrangement of a set of elements of an integrated microcircuit and connections between them, fixed on a material carrier.

Legal protection applies only to the original topology of an integrated circuit, created as a result of the creative activity of the author and unknown to the author or specialists in the field of development of topology of integrated circuits at the date of its creation. The topology of an integrated circuit is recognized as original until proven otherwise.

- know how(know-how). It recognizes information of any nature: production, technical, economic, organizational and others. This number includes information about the results of intellectual activity in the scientific and technical sphere, about the methods of carrying out professional activities that have commercial value due to their unknown to third parties, to which they do not have free access and in respect of which a commercial secret regime has been introduced (Article 1465 ).

5. Objects of the right to means of individualization:

- company names. The firm name of a legal entity must contain an indication of its organizational and legal form and the actual name of the legal entity, which cannot consist only of words denoting the type of activity.

A legal entity must have a full and have the right to have an abbreviated corporate name in Russian.

The corporate name of a legal entity cannot include:

Full or abbreviated official names of the Russian Federation, foreign states, as well as words derived from such names;

Full or abbreviated official names of federal bodies of state power, bodies of state power of the constituent entities of the Russian Federation and bodies of local self-government, as well as full or abbreviated names of international, intergovernmental and public associations;

Designations that are contrary to public interest, as well as the principles of humanity and morality.

The firm name of a state unitary enterprise may contain an indication of the affiliation of such an enterprise to the Russian Federation and the constituent entity of the Russian Federation, respectively.

The inclusion in the corporate name of a joint-stock company of the official name of the Russian Federation, as well as words derived from this name, is allowed by permission of the Government of the Russian Federation, if more than 75% of the shares of the joint-stock company are owned by the Russian Federation. Such a permit is issued without specifying the period of its validity and may be revoked in the event of the disappearance of the circumstances by virtue of which it was issued.

In case of revocation of permission to include the official name of the Russian Federation in the corporate name of a joint-stock company, as well as words derived from this name, the joint-stock company is obliged to amend its charter within three months.

- trademarks and service marks. Trademark Is a designation that serves to individualize the goods of legal entities or individual entrepreneurs. According to Art. 1482 of the Civil Code of the Russian Federation as trademarks

An exclusive right certified by a certificate is recognized for a trademark (Art. 1477 of the Civil Code of the Russian Federation). According to Art. 1482 of the Civil Code of the Russian Federation as trademarks verbal, pictorial, volumetric and other designations or their combinations can be registered. A trademark can be registered in any color or combination of colors.

- appellations of origin of goods. The appellation of origin of goods, which is granted legal protection, is a designation that is either containing a modern or historical, official or unofficial, full or abbreviated name of a country, urban or rural settlement, locality or other geographical object, as well as a designation derived from such a name and which became known as a result of its use in relation to a product, the special properties of which are exclusively or mainly determined by natural conditions and (or) human factors characteristic of a given geographical object (Art . 1516 of the Civil Code of the Russian Federation).

- other commercial designations.

Intellectual property - basic concepts and methods of protection

Everything that a person does is connected with his intellectual activity. But not all the results of intellectual activity are intellectual property, which is subject to the legal protection of the state.

What is intellectual property, what are its types, what and how is protected by the state, what are the rights of the author and copyright holder?
Brief answers to these questions are provided in this article.

Intellectual property concept

The human brain works constantly. The results of his activities can be expressed both in ideal and in any objective material form. In the latter case, the results of intellectual activity may be provided with state legal protection. These results are also called intellectual property. The latter is also equated with the means of individualization of legal entities, goods, works, services and enterprises. The law contains an exhaustive list of such results of intellectual activity. These are the followingobjects of intellectual property rights :

works of science, literature and art; programs for electronic computers (computer programs); Database; execution; phonograms; communication on the air or by cable of radio or television broadcasts (broadcasting of on-air or cable broadcasting organizations); inventions; utility models; industrial designs; breeding achievements; topology of integrated circuits; production secrets (know-how); company names; trademarks and service marks; appellations of origin of goods; commercial designations.

Intellectual rights are recognized for the specified results of intellectual activity and means of individualization (Article 1226 of the Civil Code of the Russian Federation), which include an exclusive right, which is a property right, and in the cases provided for by this Code, also personal non-property rights and other rights (the right of succession, the right of access and other).

Non-property rights include the right of authorship and the right to a name. Their importance should not be underestimated - outside the exercise of these rights, the exercise of exclusive rights is impossible, creativity and development are hindered. The copyright is inalienable and non-transferable. The original copyright holder is the author. However, the copyright holders of works can be other individuals or legal entities, but the transfer of rights must be legally formalized.

Intellectual property protection

In many cases, the authors of intellectual property do not attach due importance to its protection. Often this is remembered only when someone has already used it. At the same time, for many authors, not only the violation of exclusive (property) rights is of great importance, but also the violation of non-property rights, first of all, the right of authorship.

Legal protection of the results of intellectual activity is provided by the legal norms set forth in Part IV of the Civil Code of the Russian Federation. However, the law enforcement practice in a number of areas of intellectual property rights is clearly insufficient, which is a consequence of the underdevelopment of the legal culture in our country.

The largest number of legal disputes arises in the field of trademark protection. However, this should not confuse the copyright holders of other intellectual property rights. In all cases, the first stage of protection is the correct and most complete registration of their rights. Without this, there will be no protection. Methods and possibilities of protection depend on the type of intellectual property rights. There are the following types of intellectual property (or objects of intellectual property rights): copyright, rights adjacent to copyright, patent law, the right to a selection achievement, the right to the topology of integrated circuits, the right to production secrets (know-how), the right to the means of individualization of legal persons, goods, works, services and enterprises. Among these types of rights, the most commonly used are copyright, rights related to copyright, patent law, as well as rights to means of individualization of legal entities, goods, works, services and enterprises.

Protection of rights can be carried out in 2 forms - jurisdictional and non-jurisdictional. The first form involves protection in authorized state bodies, for example, in a court or a chamber for patent disputes. The second form presupposes independent legal actions of the copyright holder to protect their rights, for example, notifying the violator about the violation of the rights of the copyright holder.

Let's consider some of the possibilities and features of registration of rights to these types of intellectual property.

Copyright

Intellectual rights to works of science, literature and art are copyrights (Article 1255 of the Civil Code of the Russian Federation). The author of the work has the following rights:

exclusive right to a work			inviolability of a work	right to publish a work

It is also important to note (Article 1259 of the Civil Code of the Russian Federation) that copyright applies to both published and unpublished works expressed in any objective form, including in written, oral form, in the form of an image, in the form of sound or video recording, in volumetric-spatial form. For the emergence, exercise and protection of copyright does not require registration of the work or compliance with any other formalities.

With regard to computer programs and databases, registration is possible, carried out at the request of the copyright holder in the federal executive body for intellectual property.

These few clauses set out the basics of copyright while also containing major controversies and pitfalls. The paradox is that these contradictions not only complicate the protection of copyright, but can contribute to it. The latter applies to many other copyright provisions that are not listed here.

The fact is that the provisions of the copyright of the Russian Federation do not contain interpretations of the basic concepts - work, creative work, creative, objective form (just form). This means that an expansive and arbitrary interpretation of these terms is possible, which in some cases contributes to, while others complicates the protection of intellectual rights of authors. The use of these terms in the provisions of copyright leads to various contradictions in its interpretation. The above can be attributed to some other terms and provisions of copyright that copyright specialists use when resolving conflicts.

Here it is possible to dwell on only one such contradiction - "for the emergence, exercise and protection of copyright, registration of a work or compliance with any other formalities is not required" and "the person indicated as the author on the original or copy of the work is considered its author, if not proved otherwise. " These provisions are in the interests of publishers, since allow them to dictate their terms to authors and assert their rights - i.e. the legal basis is only an agreement with them. But for the authors of published works, they contain inconveniences and dangers and no longer correspond to the interests of authors of small works, authors of journal articles, authors of unpublished works.

However, in the case of computer programs and databases, which are also objects of copyright, registration is not only possible, but also recommended (Article 1262 of the Civil Code of the Russian Federation), moreover, state registration. Here many questions immediately arise - "Why ..?". Moreover, as practice shows, such registration gives nothing for real protection of programs and databases.

What can we wish the authors of other works? Is it really enough to put your name on the copy and copyrights are reserved. Of course not. Practice shows that the protection of a work begins with the correct registration of their rights, namely, with the formation of a sufficient evidence base confirming the authorship. In most cases, for this it is enough to confirm the presence (existence) of a given work at a given moment in time behind the name of a given author. Various methods can be used for such confirmation, but the most commonly used are deposition or open publications, provided there is objective evidence of the date of appearance or publication of the work.

Another problem is the protection of RIAs that are not protected by the current intellectual law. In most cases, such issues can be resolved by bringing such objects to the form of protected RIA. This is the case, for example, in the case of the defense of ideas. The idea itself is, as a rule, an ideal object. First, the description of the idea can be copyrighted. Secondly, it is possible to protect any specific objective embodiment of this idea or bring this idea to a specific expression, embodiment and protect it with the help of copyright or patent law.

Patent Law

The results of intellectual activity, which are technical solutions in the scientific and technical field (inventions and utility models) and activities in the field of artistic design (industrial designs) are classified as objects of patent law (Articles 1345-1349 of the Civil Code of the Russian Federation). State protection is granted to the said objects, which are duly recognized as inventions, utility models or industrial designs. The patent rights are confirmed by registration in the relevant State Register and the issuance of a patent for the protected object. In this case, an invention is considered a technical solution related to a product or method. A product is understood to mean, in particular, a device, a substance, a microorganism strain, a plant or animal cell culture. Under the method - the process of performing actions on a material object with the help of material means. Moreover, the invention must have an inventive step, be new and industrially applicable. In the absence of an inventive step, a technical solution can be recognized as a useful model if it is a device.

As an industrial design, an artistic design solution of an industrial or handicraft product is protected, which determines its appearance (Article 1352 of the Civil Code of the Russian Federation).

Technical solutions in Russia are most often protected in the form of inventions. However, in the case of devices, utility model protection is also very popular. Protection of technical solutions in the form of an industrial design is still rarely used in the Russian Federation.

When used to protect technical solutions of patenting, the goal and objectives of the authors or copyright holders are of great importance. The simplest task is to formally obtain a patent for image or representation purposes. Such goals are usually achieved through the use of known patent techniques and technologies.

The protection of a technical solution in any particular, specific form of execution is now quite rare and, as a rule, indicates a low patent qualification of applicants, tk. practically does not protect them from circumvention patents and has a reduced likelihood of a patent being granted, as well as other disadvantages.

The most frequently used variants of patent protection with an extended scope of legal protection. At the same time, such extensions can extend to areas (and / or areas) of technical solutions of competitors or to areas of promising solutions. In the latter cases, it is necessary to conduct appropriate patent searches or patent research, often in an extended range of patent and technical documentation.

In some cases, one hears skeptical opinions about a utility model. Such opinions are not substantiated. According to the law, the protective capabilities of a utility model are no less than an invention. The only difference is the duration. Moreover, the probability of obtaining a patent in the case of a utility model is much higher. In addition, the utility model is a more flexible and convenient tool for solving many tactical and strategic issues of protection and development of an invention or business. However, at the same time, it is necessary to take a more responsible attitude to the development of the formula and the design of the utility model.

Rights to means of individualization of legal entities, goods, works, services and enterprises

These rights include the rights to a company name, trademark or service mark, appellation of origin of goods, commercial designation.

A legal entity that is a commercial organization acts in civil circulation under its corporate name, which is determined in its constituent documents and is included in the unified state register of legal entities when registering a legal entity (Article 1473 of the Civil Code of the Russian Federation). The firm name of a legal entity must contain an indication of its organizational and legal form and the actual name of the legal entity, which cannot consist only of words designating the type of activity.

Despite the fact that the law provides for organizations the exclusive right to use their company name, as a means of individualization in practice, this is not strictly observed, because registration authorities practically do not check the existence of similar names. However, the organization in case of finding "doubles" can take legal action.

In the field of protection of rights to means of individualization, the protection of rights to a trademark or service mark is most in demand. A trademark is a designation that serves to individualize the goods of legal entities or individual entrepreneurs. The exclusive right to a trademark is certified by a certificate (Art. 1477 GKRF). Verbal, figurative, three-dimensional and other designations or their combinations can be registered as trademarks. A trademark can be registered in any color or combination of colors.

The issuance of a certificate is preceded by an examination in two stages, the purpose of which is to establish sufficient distinctiveness with the trademarks used and a number of other designations specified in the law.

When filing an application for a trademark certificate, a preliminary search for similar designations should be carried out. You should also take into account that the claimed trademark will be valid only for the list of goods and / or services specified by you according to the ICGS classes (international classification of goods and services), and also that the trademark may contain unprotected elements, which may be of great importance in proving distinctive features of the sign.

The law also provides for the use of a commercial designation as a means of individualization. In contrast to a trademark, a commercial designation is used not to designate goods and services, but to individualize trade, industrial and other enterprises (Article 1538 of the Civil Code of the Russian Federation). However, this does not preclude its use for the indirect individualization of the products of these enterprises. Taking this into account, the possibilities of using a commercial designation as a means of individualizing an organization and goods are quite wide. Despite this, the use of a commercial designation has not yet found widespread use, mainly due to its lower image in the business environment.

Methods / possibilities of intellectual property protection on this site rights, patenting technical solutions of complex works, for example, a website
Issuance of patents by Rospatent for invention, utility model, industrial lent sample, witness goods for a commodity sign
		Excluder nye rights to practice implementation of design, architecture, landscape according to since published new projects	commercial designation and brand name, transmission fixation organization rights / enterprise

More detailed information on the protection of intellectual property rights can be found in the relevant sections of the site.