IP in business transactions: Russian Federation overview

A guide to intellectual property law in the Russian Federation. The IP in business transactions Q&A gives an overview of maintaining an IP portfolio, exploiting an IP portfolio through assignment and licensing, taking security over IPRs, IP and M&A transactions, and the impact of IP on key areas such as competition law, employees and tax.

To compare answers across multiple jurisdictions, visit the IP in business transactions Country Q&A tool.

This Q&A is part of the multi-jurisdictional guide to IP law. For a full list of jurisdictional Q&As visit www.practicallaw.com/ip-mjg.

David Aylen and Alexander Christophoroff, Gowlings Russia/CIS
Contents

Overview of main IPRs

1. What are the main IPRs in your jurisdiction? How are they protected?

Patents

Patents can protect inventions, utility models and industrial designs (Article 1345, Part IV, Civil Code).

Patents on inventions. To be patentable, the subject matter of an invention must be a technical solution in any area related to either (Article 1350, Part IV, Civil Code):

  • A product, including a structure, substance, micro-organism strain, or culture of cells of plants or animals.

  • A means, that is, a process of conducting actions on a material object with the help of material means.

The term of protection is 20 years from the filing date.

Patents for utility models. Utility models are protected if they relate to a technical solution relating to a structure. It must be new, novel and useful. There is no requirement that it have an inventive level.

The term of protection is ten years from the filing date and can be extended by up to three years.

In both cases, patent applications are made to Rospatent, the Russian Federal Service for Intellectual Property, Patents and Trade marks.

Trade marks

Trade marks can be registered for:

  • Words, designs, sounds, fragrances and combinations of these in any colour or colour combination.

  • Verbal, pictorial, three-dimensional and other indications.

  • Service marks: marks used to designate services.

Trade marks must be registered to be enforceable in Russia. Use is not a requirement at the time of application or registration. However, after three years, the mark is vulnerable to cancellation for non-use.

Trade mark applications are made to Rospatent (see above, Patents).

Applications are examined for formalities and then substance. There is no opposition process during prosecution, however, cancellation proceedings can be filed once the registration has issued. The registration process in straightforward cases takes about 12 to 18 months.

Trade mark registrations are renewable for consecutive periods of ten years and can continue in perpetuity provided that they are not cancelled for non-use or on some other basis under Part IV of the Russian Civil Code.

Russia is a signatory to the:

  • World Intellectual Property Organization (WIPO) Madrid Agreement Concerning the International Registration of Marks 1891 (Madrid Agreement).

  • WIPO Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989 (Madrid Protocol).

  • WIPO Paris Convention for the Protection of Industrial Property 1883 (Paris Convention).

See Question 26.

Applications can therefore be filed either directly into the Russian Federation or through the Madrid system, claiming priority from earlier filed applications.

Copyright

Copyright subsists in any qualifying work on its creation without a requirement for registration.

Intellectual rights to works of scholarship, literature and art are copyright rights (Article 1255, Part IV, Civil Code). Numerous types of works are protectable, including (Article 1259, Part IV, Civil Code):

  • Literary works.

  • Computer programs.

  • Musical works.

  • Audiovisual works.

  • Works of architecture.

  • Photographic works.

  • Derivative works.

  • Compiled works.

Databases are specifically protected (Article 1334, Part IV, Civil Code).

The basic term of protection is 70 years and the start of the term depends on the particular circumstances. There is no registration requirement with Rospatent, except for databases and software, although registration is advisable and can be effected at any time.

Design rights

See above, Patents.

Confidential information

See above, Secrets of production (know-how).

For further information about the main IPRs, see Main IPRs: Russian Federation (www.practicallaw.com/3-501-9984)

Breeders' rights

A patent can be granted for achievement of breeding that (Article 1413, Part IV, Civil Code):

  • Meets the criteria of capability of protection (that is, it is novel, distinguishable, uniform and stable).

  • Relates to botanical or zoological breeds.

The grant of a patent for an achievement of breeding extends for a period of 30 years except for varieties of grapes, decorative tree and fruit cultures and forest varieties, where the term is 35 years.

Integrated circuits' layouts

Rights to integrated circuit topographies arise on creation. To be protected, the layout must be original and created as a result of the author's creative activity. Registration with Rospatent is possible but is not required. There is no deadline to register other than that the application must be filed during the time period of the exclusive right. The term is ten years from the earlier of the:

  • Date of the first use of the layout, that is, the earliest documented date of its introduction into civil commerce.

  • Date of registration.

Secrets of production (know-how)

There is no obligation or possibility to register know-how unless the owner wishes to obtain alternate protection in the form of a patent for an invention, a utility model or like rights (see above, Patents).

Information can be of any type for example, production, technical, economic, or organisational, without restriction as to subject-matter.

For the information to be protected:

  • The information must have actual or potential value.

  • There must not have been free access by others to the information.

  • The holder of the information must have imposed a regime of commercial secrecy.

This right survives for as long as confidentiality is maintained (Article 1467, Part IV, Civil Code).

Others who have independently developed similar information acquire contemporaneous rights to that information (Article 1466, Part IV, Civil Code).

For further information about the main IPRs, see Main IPRs: Russian Federation (www.practicallaw.com/3-501-9984).

Industrial designs

A design, to be registrable, must be an industrial or handicraft manufacturer's artistic design solution which defines its external form. The design's essential characteristics determining the aesthetic and ergonomic features of the external form must be new and original.

The term of protection is 15 years and can be extended for another ten years, for a total of 25 years. Trade mark applications are made to Rospatent (see above, Patents).

 

Maintaining IPRs

2. What facilities are available to conduct IP searches and obtain IP information on registered IP rights?

Rospatent and the Eurasian Patent Organisation (EAPO) offer free information tools, open registers including registers of pending applications and fee-based search tools. The EAPO comprises nine countries:

  • Turkmenistan.

  • Belarus.

  • Tajikistan.

  • Russian Federation.

  • Kazakhstan.

  • Azerbaijan.

  • Kyrgyz Republic.

  • Moldova.

  • Armenia.

Post-registration searches for monitoring possible infringement are usually done by monitoring the market. No specialised facilities are available.

Patents

See above.

Trade marks

See above.

Copyright

Only software and databases can be registered and this is optional.

Design rights

See above.

Confidential information

There is no register for confidential information, nor is it registrable.

 
3. What steps must a business take to maintain the registration and status of its main IPRs?

Certain rights must be registered to be enforceable (see Question 1). Others, such as copyright for databases and software and integrated circuit topographies can be registered, but it is not mandatory. Other copyrighted works and confidential know-how cannot be registered.

Most IPRs have maximum terms and require the payment of annual maintenance fees:

  • Patents for inventions. These have a maximum term of 20 years from filing date. Maintenance fees are payable from the end of the second anniversary.

  • Patents for utility models. These have a maximum term of ten years, which can be extended by up to three years. Maintenance fees are payable from the first year.

  • Industrial designs. These have a maximum term of 15 years, which can be extended for another ten years. Maintenance fees are payable from the end of the second anniversary.

  • Breeders' rights. Patents last 30 years or, in some cases, 35 years (see Question 1, Breeder's rights). Maintenance fees are payable from the first year after registration.

If the owner fails to pay the maintenance fee, he has six months to make payment plus an additional charge). Annual fees increase yearly.

Patents

For invention patents, maintenance fees accrue from the end of the second anniversary of the filing date and are payable upon grant. For utility models, maintenance fees are payable from the first year.

Trade marks

Trade marks are an exception in that they have no maximum term. They have an initial term of ten years, but are renewable every ten years on the payment of a government fee, currently RUB15,000 (as at 1 March 2012, US$1 was about RUB29.5).

Non-use of trade marks during three consecutive years may lead to cancellation so it is also highly advisable to keep track of their use.

Copyright

Nothing is required to maintain a right in copyright. If a registration of copyright was obtained, nothing is required to maintain that registration.

Design rights

Maintenance fees accrue from the end of the second anniversary of the filing date and are payable upon grant.

Confidential information

Although there is no registration or maintenance fee regime, the owner of the information must continue to maintain a regime of commercial security and there must not be free access to the information by others.

 
4. What steps can a business take to avoid committing an infringement of another party's IPRs and to monitor whether a competitor is infringing its IPRs?

The principal steps that a business can take to avoid committing an infringement of a main IPR are:

  • Conducting a search of the register and the market.

  • Requesting a freedom-to-operate opinion from experts (for example, a law firm) to ensure that a particular action will not infringe the valid IPRs of others.

  • Registering its IPRs.

To monitor whether a competitor is infringing its IPRs, the business should monitor the market.

 

Exploiting IPRs

5. What are the main steps in an IP audit in your jurisdiction to determine the content of an IP portfolio?

The main steps are to:

  • Obtain basic information from the interested parties, such as the business or its employees).

  • Conduct a search of the public records.

  • Verify the validity of the patents, trade marks and other IPRs by searching Rospatent's and EAPO's free online registers (see Question 2).

Patents

In addition to the above, in the case of unpatented inventions, the audit should include a reporting scheme whereby potential inventors are requested to submit invention disclosure statements.

Trade marks

In addition to the above, in the case of unregistered but valuable trade marks, the audit should canvass the full scope of use of marks of all types in advertising, on products and in association with services.

Copyright

In addition to the above, an investigation should be conducted internally within the organisation to assess all of the graphic designs, three dimensional designs, written works, charts (and the like) and software that have been created in the normal course and which might qualify as protectable works.

Design rights

See above, Patents.

Confidential information

A know-how capturing strategy should be designed for internal use within an organisation to assist in identifying protectable and valuable information that may not have been recognised.

 

Assignment

6. How can main IPRs be assigned?

Assignment can be done in whole or part, with or without goodwill. Some limitations exist if the assignor intends to keep similar trade marks or the company name.

It is not possible to assign future rights, but it is usually possible to enter into a contract providing for the distribution of IPRs to specific future works, which has basically the same legal effect. Assigning all future works is prohibited. Assignment with jurisdictional restrictions is allowed for foreign countries. It is not usual practice to divide the IPRs according to territorial zones within Russia since this may be considered as an anti-competitive activity, although there is no direct prohibition on doing so.

 
7. What formalities are required to assign each of the main IPRs?

Assignment must be made in the form of an assignment contract, signed by both parties. In addition, it is obligatory to register assignment of:

Patents

Registration of a written assignment signed by both parties is required.

Trade marks

Registration of a written assignment signed by both parties is required.

Copyright

Registration of a written assignment signed by both parties is required where copyright has been registered for a database or software.

Design rights

Registration of a written assignment signed by both parties is required.

Confidential information

If confidential information is to be assigned, a written assignment signed by both parties is required but it is not registered.

 
8. What main terms should be included in an assignment of IPRs?

The main terms which should be included in an assignment of IPRs include the following:

  • Whether the assignment is on a paid for or free basis.

  • In case of a paid basis, the amount of fee or procedure for its determination.

  • The extent to which the rights are assigned.

 

Licensing

9. How can each of the main IPRs be licensed?

Licensing can be done in whole or in part, with or without goodwill, and with or without jurisdictional restrictions.

 
10. What are the formalities to license each of the main IPRs?

Licensing must be done through a contract, signed by both parties. In addition, the licensing of patents (including design patents and utility models) and trade marks is subject to obligatory registration.

Patents

Licensing must be done through a contract, signed by both parties. In addition, the licensing of patents (including utility models) is subject to obligatory registration, failing which it is void.

Trade marks

Licensing must be done through a contract, signed by both parties. In addition, the licensing of trade marks is subject to obligatory registration, failing which it is void.

Copyright

Licensing must be done through a contract, signed by both parties.

Design rights

Licensing must be done by way of contract, signed by both parties. In addition, the licensing design patent is subject to obligatory registration failing which it is void.

Confidential information

Licensing must be done through a contract, signed by both parties.

 
11. What main terms should be included in an IP licence?

The main terms are:

  • Whether the licence is made on a free or paid basis.

  • Whether the licence is exclusive or non-exclusive (it is presumed to be non-exclusive where it is not specified).

  • If the licence is on a paid basis, the amount of fee or procedure for its determination.

  • The extent of the licence, that is the rights and territory to which the rights are licensed. Where the territory is not specified, it is presumed to be the entire territory of Russia. Only the expressly listed rights, however, are included.

Trade mark licences should contain clauses on quality and quality control.

 

Taking security

12. Is security commonly taken over IPRs?

IPRs can be the object of security as of January 2008, when Part IV of the Russian Civil Code came into effect. IPRs are not, as yet, commonly secured, but security over IPRs is becoming increasingly popular. An IPR is secured through a pledge (see Question 13).

Certain IPRs cannot be pledged under Russian law, including:

  • An author's exclusive right to a work.

  • A performer's right to performance.

  • A right to a secret invention.

  • Royalty rights for resale.

  • A right to manuscripts and autographs. Under Russian law, authors enjoy resale royalty rights regarding manuscripts and autographs. When assigning the manuscript, the author reserves the exclusive right to the work unless the agreement provides otherwise.

  • A right to the company name and the commodity place of origin.

So far, the most commonly secured IPRs in Russia have been trade marks. In the last couple of years, several major Russian retail chains have borrowed money from the banks against pledges of trade marks. However, in the absence of any court practice, it is difficult to identify the main problems related to pledges over IPRs.

 
13. What are the main security interests taken over IPRs?

The main security interest taken over IPRs is a pledge (which is most commonly taken over a trade mark) (see Question 12). A pledge must be:

  • In writing.

  • Registered with Rospatent, if the IPR must be registered (see Question 1). In the absence of registration, the pledge agreement will be void.

Patents

The most common security interest is a pledge which must be:

  • In writing.

  • Registered with Rospatent. In the absence of registration, the pledge agreement will be void.

Trade marks

See above, Patents.

Copyright

The most common security interest is a pledge which must be in writing.

Design rights

See above, Patents.

 

M&A

14. What IP-related due diligence is commonly carried out in both a share sale and an asset sale?

In both share sales and asset sales, the seller must provide the following information and documents:

  • Its IP portfolio, including all valid registrations and pending applications.

  • Licence agreements and licences of IPRs.

  • Employment contracts and service agreements with third parties for creation and assignment of IPRs.

  • Internal regulations on:

    • confidential information protection;

    • confidentiality agreements; and

    • other confidentiality related documents.

  • Cases of violation of any third party's IPRs.

  • Any current, pending or threatened claims or litigation relating to the target's IPRs.

Depending on the nature of the transaction and the target's business operations, the buyer may request other information from the seller.

 
15. What IP-related warranties and/or indemnities are commonly given by the seller to the buyer in both a share sale and an asset sale?

In share and asset sales, the seller generally warrants and guarantees to the buyer that:

  • The seller disclosed all information relating to its IPRs.

  • The seller has valid titles to all IPRs.

  • The IPRs are not pledged.

  • The target's activity is protected by IPRs, where applicable.

  • IPRs are properly registered and maintained.

  • There is no infringement of third-party IPRs.

  • There is no pending or threatened litigation concerning the target's IPRs.

Depending on the nature of the transaction and the target's business operations, the seller may be required to provide other representations and warranties.

 
16. How are the main IPRs transferred in both a share sale and an asset sale?

There is no transfer of IPRs in a share sale as they remain the property of the target.

In an asset sale, an assignment agreement is concluded for each IPR. It is important to make sure that registration is made for registered IPRs (see Question 1).

In both share and asset sales, the parties must check and comply with any change of control or non-assignment restrictions.

 

Joint ventures

17. Is it common for companies to set up joint ventures in your jurisdiction to develop projects that heavily involve IPRs?

There are not many cases of setting up joint ventures to develop IPR-related projects in Russia. Russian law does not set any specific requirements as to what provisions should be included in the joint venture agreements.

 

Competition law

18. What are the main provisions of your national competition law that can affect the exploitation of the main IPRs?

Unfair competition is prohibited, including (Law on Competition Protection 2006):

  • Disseminating false or inaccurate information that can impair a legal entity's business reputation or inflict damage on it.

  • Providing misinformation concerning the:

    • manufacturer, nature, method or place of production of the products; and

    • products' usability, quality and quantity.

  • An incorrect comparison of the legal entity's products with products manufactured by other legal entities.

  • Sale, exchange or other placing in the market of products associated with the use of another legal entity's IP or means of individualisation such as a trade mark, name or place of origin of that legal entity's products, works or services.

  • The acquisition and use of another legal entity's exclusive right to means of individualisation of that entity's products, works or services.

  • The illegal acquisition, use or disclosure of information comprising commercial, trade or other proprietary secrets.

It is possible to challenge registration of an IPR, if registration was obtained in breach of the Law on Competition Protection's requirements.

 
19. What are the most common national competition law issues that arise in the exploitation of the main IPRs?

Any monopolistic activity, including agreements resulting in unfair competition, is prohibited (Law on Competition Protection) (see Question 18). In the IP area, the Federal Anti-monopoly Service of the Russian Federation (Anti-monopoly Service) will scrutinise licence agreements that include the following to check whether they are in breach of competition law:

  • Provisions authorising the licensor to fix the licensee's selling prices, terms and conditions.

  • Territorial exclusivity clauses.

  • Non-competition clauses.

  • Tie-in provision.

 
20. What exclusions or exemptions are available for national competition law issues involving the exploitation of the main IPRs?

The Law on Competition Protection does not provide for exclusions or exemptions for exploitation of the main IPRs.

 

Advertising

21. To what extent do advertising laws impact on the use of third party trade marks?

Use of third party trade marks is regulated by the Law on Advertising and monitored and supervised by the Anti-monopoly Service.

Generally, the law prohibits unfair and inaccurate advertising that may:

  • Mislead consumers.

  • Impair a competitor's reputation.

  • Constitute an act of unfair competition (see Question 18).

Examples of potentially unfair advertising include:

  • Comparative advertising, if it:

    • is unethical;

    • contains incorrect comparisons of the advertised products with products in circulation that are manufactured or sold by other persons.

  • Advertising of a product which is subject to limitations on advertising by a certain means, in a certain place, or at a certain time when it is advertised under the image of another product whose trade mark is identical or confusingly similar to the trade mark subject to the advertising restrictions.

 

Employees and consultants

22. Who owns each of the main IPRs created by an employee in the course of his employment? Is compensation payable in relation to employee IPRs? What main steps can an employer take to ensure it owns each of the main IPRs?

The employer is the principal owner of IPRs created by an employee as a matter of the employee's duty or as a result of the employer's specific instructions. However:

  • IPRs are legally transferred to the employee if they are not used (for example, a patent application is not filed or other discretionary action is not taken by the employer within four months after the employee's report on an invention, design or utility model).

  • An employer must pay contractual compensation for the IPR to the employee.

Therefore, the employer should ensure that:

  • The employment relationship is documented.

  • The employee's duties or specific instructions are documented.

  • Discretionary actions (for example, filing a patent application) are taken in a timely manner.

  • Contracts with employees for payment of compensation for the IPRs are concluded and fulfilled.

 
23. Who owns each of the main IPRs created by an external consultant? What main steps can a business take to ensure it owns each of the main IPRs?

The parties to the contract between a business and an external consultant are free to negotiate the specific distribution of IPRs in a contract. When the consultant is not supposed to be the actual author, designer or inventor, it is advisable to include specific provisions concerning the consultant's employees (see Question 22).

Where ownership is not expressly specified, it is presumed that the customer is the owner of IPRs whose creation was specifically provided for by the contract.

 

Tax

24. What are the main taxes payable by a licensor on the licensing of the main IPRs?

A licensor must pay corporate income tax and value added tax (VAT). Payment will depend on the licensor's residence.

Corporate income tax (withholding tax)

The following rules apply:

  • A Russian licensor pays 20% corporate income tax on royalties received from a Russian licensee.

  • Royalties payable to a foreign licensor by a Russian licensee are subject to 20% withholding tax. A Russian licensee acts as a tax agent for the foreign licensor and must remit the withholding amount to the state on the licensor's behalf. If the foreign licensor is established in and operates under the laws of a state which has a tax treaty with the Russian Federation, a reduced or zero tax rate will apply. To enjoy tax relief, the foreign licensor must provide a proof of its tax residency in the relevant foreign state, which is certified by the competent government authority.

VAT

VAT is charged as follows:

  • A Russian licensor charges 18% VAT on royalty payments payable by a Russian licensee and remits the amount to the state.

  • A foreign licensor must charge 18% VAT on royalties' payable by a Russian licensee. When a foreign licensor does not have permanent establishment in the Russian Federation, the Russian licensee acts as a tax agent and withholds the VAT amount from the royalty payments and remits it to the state. In that case, the licence agreement will contain a gross-up provision and the amount of royalty paid to the foreign licensor is grossed up by 18%.

Licensing of patents, software, databases, semi-conductor topographies and know-how is exempt from VAT.

 
25. What are the main taxes payable by a seller on the disposal of the main IPRs?

Corporate income tax applies to the disposal of IPRs (see Question 24, Corporate income tax (withholding tax)).

 

Cross-border issues

26. What international IP treaties is your jurisdiction party to?

Russia is party to, principally, the following IP treaties:

  • Paris Convention.

  • Eurasian Patent Convention 1994.

  • Patent Cooperation Treaty 1978 (PCT).

  • Madrid Agreement and Protocol.

  • UN Universal Copyright Convention 1952.

  • WIPO Berne Convention for the Protection of Literary and Artistic Works 1971.

  • Convention Establishing the WIPO 1967.

  • WIPO Trademark Law Treaty 1994.

  • World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights.

  • WIPO Patent Law Treaty 2000.

  • Tripartite Customs Union 2010 (Russia, Kazakhstan and Belarus).

  • WIPO Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks 1957.

See also the detailed listing and outline of WIPO administered treaties at www.wipo.int/treaties/en.

 
27. Are foreign IPRs recognised in your jurisdiction?

Foreign IPRs are not automatically recognised and in force in Russia except in relation to:

  • Copyright.

  • Eurasian Patents obtained under the Eurasian Patent Convention (see Question 26).

  • Trade mark applications filed under the Madrid system (see Question 26).

Various treaties allow for the late filing of applications in Russia on the basis that they have priority from an application filed elsewhere, for example:

  • Under the Paris Convention:

    • patent applications that are first filed elsewhere can obtain the benefit of the foreign filing priority date if later filed in Russia within 12 months;

    • trade mark applications that are first filed elsewhere can claim an earlier priority date from a foreign application if later filed in Russian within six months.

  • The PCT provides a unified procedure for filing patent applications in various countries. A single filing is made in a designated PCT receiving office then Rospatent processes a national phase entry application if the applicant wishes to proceed to grant and registration.

Patents

Eurasian Patents obtained under the Eurasian Patent Convention (see Question 26) will include Russia as a member state to the EAPO regime.

Trade marks

Trade mark applications filed under the Madrid system can extend protection to Russia under an international registration (see Question 26).

Further, under the Paris Convention, trade mark applications which are first filed elsewhere can claim an earlier priority date from a foreign application if later filed in Russian within six months.

Copyright

Russia is a member of the Berne Convention. Accordingly, copyright that subsists under the law of a member state will be accorded protection in Russia to the same extent as copyright in a work that originated within Russia.

Design rights

Under the Paris Convention, patent applications for industrial designs which are first filed elsewhere can obtain the benefit of the foreign filing priority date if later filed in Russia within six months.

 

Reform

28. Are there any proposals for reform?

Currently, both substantive IP law and IP court reform are the subject of discussions for reform.

IP law

Reforms proposed to IP law include suggestions for the:

  • Elimination of:

    • substantive examinations, and detailed description and quasi-claims, for design patents;

    • ex officio refusals (that is refusal issued without third party opposition) based on prior rights for trade marks.

  • Introduction of a system of opposition for trade mark applications.

However, no time frame is currently defined for the reforms.

IP court reform

An official draft law was introduced in 2010, which provides for a court on intellectual rights (IP Court). The scope of powers and jurisdiction of this Court are still being considered. At the moment, the institution of the Court is planned for February 2013.

It is also planned to transfer the trade mark non-use cancellation cases from Rospatent to the commercial courts. Appeals from the commercial courts on these cases would also be heard by the new court on intellectual rights.

The legislation is planned to be formally approved in 2012.

 
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