Russian Federation: Interesting Court Decisions In 2015 In The Fields Of IP, IT And Mass Communications: Dentons' Takeaway

Last Updated: 1 April 2016
Article by Victor Naumov and Anastasia Zagorodnaya

The consideration in 2015 by the state commercial (arbitrazh) courts of disputes associated with the protection of intellectual property rights resulted in the adoption of 15,702 judicial acts, representing a 10 percent increase over the same figure for 2014.

Among the many interesting court decisions adopted in 2015 in the areas of intellectual property rights, information technologies and mass media regulation, we have selected the top ten we view as the most notable. Presented below is a brief overview of the positions taken by the courts.

Copyright and related rights

Ruling by the RF Supreme Court dated June 11, 2015 in Case No. А50-21004/2013 (Edelweiss vs. N.A. Volegov)

Multiple characters – multiple compensation payouts

Unlawful use of multiple elements (characters) of a single work that are independent objects of copyright protection represents multiple violations of exclusive rights, for each of which separate compensation may be recovered.

Ruling by the RF Supreme Court dated April 8, 2015 in Case No. А12-18806/2013 (Rosreestr Office for Volgograd Region vs. Megapolis)

Surveying and mapping can be creative

The RF Supreme Court overturned the findings by the Intellectual Property Court that the determination of geodesic coordinates represents a process of technical measurements with the use of industrial devices and application of mathematical formulae devoid of intellectual creativity, indicating that the process of creating surveying and mapping products, materials and data (including the coordinates of points within the state geodesic network) can either be deemed technical and production-related in nature, or be considered a process of scientific inquiry, and therefore intellectually creative.

Ruling by the Intellectual Property Court dated April 24, 2015 in Case No. А40-150342/2013 (Classic Partner vs. Mail.Ru)

It's not enough to name a music track – you actually have to listen to it

The court noted that citing the title and performer of a music track is insufficient for the purposes of identifying a recording, insofar as the unique identifiers of works of music include such attributes as texture, polyphony (counterpoint), harmony, composition and others. It ruled that a track can be identified via examination of the respective audio recording.

The court also noted that an information intermediary had committed no wrongdoing in the violation of intellectual property rights to a track because the intermediary had taken reasonable measures evidencing due diligence and care.

Ruling by the Intellectual Property Court dated August 26, 2015 in Case No. А73-13567/2014 (I.A. Varlamov vs. Dalnevostochnaya Information Company)

Citation not applicable to photographs

The use of photographs fully expressed in graphic form does not constitute citation. Citation is the word-for-word repetition of a particular part of a text and not of another graphic form (photograph or video image).

The RF Supreme Court justice refused to transfer the case for hearing by the Judicial Panel for Economic Disputes at the RF Supreme Court.

Ruling by the Intellectual Property Court dated May 8, 2015 in Case No. А40-84902/2014 (Gestmusic Endemol et al. vs. Channel One)

The television show format, being a concept, is not protected by copyright

The format of a television show described in the production bible constitutes a TV show concept the elements of which encompass the means, methods, ideas and sequence of actions necessary for the creation of the television program. As such, these elements cannot be qualified as parts of the creative process, but rather simply describe the production technology. Consequently, the television show format is not protected by copyright law.

The RF Supreme Court justice refused to transfer the case for hearing by the Judicial Panel for Economic Disputes at the RF Supreme Court.


Ruling by the Intellectual Property Court dated December 1, 2015 in Case No. А21-7328/2014 (Sony Corporation vs. PAG)

An abstract claim to ban future trademark use cannot be granted

The cassation court overturned rulings by the lower courts prohibiting the respondent's use, without the claimant's prior consent, of the "SONY" trademark with respect to goods covered by the registered trademark, including their importation, marketing, sale or other release into public circulation within the Russian Federation, as well as their transportation and/or storage for the aforementioned purposes, insofar as abstract claims seeking a general ban against any use at any time in the future by a specific party of intellectual property or means of individualization cannot be granted by virtue of law (Clause 1 Article 1252 of the RF Civil Code).

The ruling has been appealed to the RF Supreme Court.

Commercial secrets

Decision by the Oktyabrsky District Court of the City of Penza dated September 10, 2015 in Case No. 2-1980/2015 (I.N. Urusov vs. Penztyazhpromarmatura)

An employee's personal email box is no place for the commercial secrets of his employer

In order to qualify a party's actions as the disclosure of commercial secrets, it is sufficient merely to establish the fact that, as a result of that party's actions or inaction, legally protected information can become known to third parties. That said, the question of whether any third parties have actually accessed such information is of no legal consequence.

The court found that the employee who had sent a file with information constituting commercial secrets of his employer to his own personal email committed disclosure of those commercial secrets, because the employee's personal email account is beyond the employer's control and is therefore vulnerable to unauthorized access, including by means of hacking.

The appellate court upheld the decision. The decision has been appealed to the cassation court.

Mass media

Ruling by the Intellectual Property Court dated May 14, 2015 in Case No. А40-66891/2014 (Discovery Communications vs. Astron)

With a licensing agreement in place, a separate communications services agreement is not required

If a mass media broadcaster engages in the retransmission of its products via the cable network of a telecom operator based on a licensing agreement under which the broadcaster is the licensor and the operator is the licensee, the conclusion between the two parties of a separate communications services agreement is not required.

Information intermediaries

Ruling by the Intellectual Property Court dated December 9, 2015 in Case No. А40-52455/2015 (Magnitogorsk Iron and Steel Works vs. Domain Name Registrar REG.RU et al.)

A domain name registrar qualifies as an information intermediary

A domain name registrar provides the opportunity to gain access, through the domain name registered by it, to the online material published on the respective website and likewise has the ability to restrict (suspend, terminate) access to such material by Internet users.

Consequently, on the basis of Article 1253.1 of the RF Civil Code, the right holder is entitled to insist upon the domain name registrar's protection of its exclusive rights in connection with the information published on the website accessible at the respective domain name.

Computer games

Ruling by the RF Supreme Court dated September 30, 2015 in Case No. А40-91072/2014 (Mail.Ru Games vs. RF Federal Tax Inspectorate No. 14 for the City of Moscow)

The provision of additional functionality for a multiplayer online game is a service

Providing the capability to use additional functionality within an interactive multiplayer online computer game for the purposes of streamlining the gaming process and ensuring the accelerated development of game characters represents a standalone service associated with the organization of the gaming process, and as such it is taxable at a rate of 18 percent, whether or not the relations with the individual player are formalized by a licensing agreement.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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