The company "Garant" held the next All-Russian online seminar, which was devoted to the taxation of intellectual property (IP). The manager of Deloitte and Touche Regional Consulting Services Limited (Deloitte), Associate Professor of the Department of Administrative Law of the Faculty of Law of Moscow State University named after M.V. M.V. Lomonosov, candidate of legal sciences Alexey 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. Alexey Sergeev spoke about how serious these risks are and discussed some ways to reduce them, using the latest clarifications from the Russian Ministry of Finance and the Russian Federal Tax Service, as well as specific examples from judicial practice.

Civil law bases

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 intellectual property rights as property rights. Accordingly, wherever property rights are mentioned in the Tax Code, objects of intellectual property should also be understood. Below we will consider in more detail certain provisions of Part 4 of the Civil Code.

Let us dwell on some 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; the second - patent rights (inventions, utility models, industrial designs); to the third - means of individualization legal entities, goods, works, services (trademarks and service marks, trade names, commercial designation); to the fourth - other objects of intellectual property (breeding achievements, know-how, etc.). A very important civil law moment is connected with the method of disposing of the rights to intellectual property objects. As practice shows, in the overwhelming majority of cases, any tax problems arise precisely when the taxpayer tries to dispose of these rights. With the adoption of Part 4, typified forms of disposition of intellectual property rights were fixed, which apply to all its objects. In fact, these are 2 main forms: an agreement on the alienation of an exclusive right and a license agreement.

An agreement on the alienation of an exclusive right implies a complete transfer of rights to intellectual property. In this case, the transferring party completely loses any rights to the transferred object. Under a license agreement, we transfer the rights to use the intellectual property in a certain way, while remaining the owner of this object. The license can be either exclusive (the right holder has the right to transfer the rights to the OIP to other persons) or non-exclusive (that is, the right holder can enter into license agreements an unlimited number of times with other persons). Moreover, there is no need to confuse relations in terms of an agreement on the alienation of an exclusive right and a license agreement on the transfer of an exclusive license, since in the first case we are deprived of the right to possess intellectual property rights, and in the second case we remain the owner of such rights.

Let's not forget some very important formal points. An agreement on the alienation of an exclusive right, a license agreement, a sublicense agreement, concluded not 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 respect to a trademark, the form of use can be defined as putting this mark on a package or mentioning it in product advertising, etc.

Tax disputes related to the right to trademarks

There is a growing number of litigations where inspectors make claims for the costs of acquiring intellectual property. Moreover, the largest number of tax disputes today is associated with trademark rights.

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

The situation with trademark rights is aggravated by the fact that in this case agreements on the transfer of intellectual property rights usually provide for quite significant amounts. The exclusion by the tax authorities for some reason of these amounts from the composition of tax expenses leads to disastrous consequences for the taxpayer.

I draw your attention to the fact that agreements related to the transfer of the right to a trademark (licensing 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 the acquisition of the right to a trademark not documented and not meeting the criteria of Article 252.

With regard to 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 law defects of the transaction do not affect its tax consequences. For example, if the contract 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 repeatedly emphasized that violations of other, non-tax industries should not affect the tax consequences, with the exception of cases that are expressly provided for by the Tax Code. However, in order to save your time and save effort, you need to do registration, 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 the appropriate notification of receipt of the documents. Subsequently, a reference to the fact that the taxpayer has already taken steps aimed at state registration of the agreement may relieve additional claims from the inspectors.

The Civil Code enshrined the principle of exhaustion of rights to intellectual property rights. According to it, after the introduction of goods marked with a trademark into civil circulation by the right holder or with his consent, further sale of such goods is allowed without the permission of the right holder 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 revealing court case, where the taxpayer used the model of separation of sales and production in different legal entities, which is typical for many organizations today.

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

What is the first thing that attracts the attention of auditors? Of course, there is a huge difference in the rates for licensing and sublicensing agreements. The inspectors come to the conclusion that the licensing rights of the distribution company are simply not needed, since the manufacturer actually uses the trademark rights. At the same time, the inspectors refer to the principle of exhaustion of rights to a trademark, indicating that goods marked with trademarks are introduced into civil circulation by the manufacturer at the stage of selling all manufactured products to a distributor. For 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 in favor of a third party (manufacturer). In addition, sublicensing operations are obviously unprofitable due to the difference in rates. Based on this, the tax authority concluded that the costs of paying royalties are not economically justified and are aimed only at lowering the base for income tax and VAT, which is inconsistent 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 his position regarding the legitimacy of accounting for VAT deductions in the Supreme Arbitration Court of the Russian Federation. Thus, the VAT risk can now be assessed as insignificant, while 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 buyers. This entails tax risks for sellers, which are mentioned in a number of letters from the Russian Ministry of Finance (No. 03-07-08/36 dated February 21, 2008; 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 transferring the disc, no contract is concluded, and therefore no rights are transferred. Moreover, the text of the "wrapper" license, as a rule, links the user and the creator of the program. But the disk 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 benefits provided for by subparagraph 26 of paragraph 2 of Article 149 of the Tax Code, the software vendor should develop a sublicense agreement and conclude it with its buyers. The sublicense agreement should provide for the transfer to the user not only of the right to use the program "for its intended purpose" (Article 1280 of the Civil Code of the Russian Federation), but also of some other powers.

Very often, taxpayers have a question related to whether trademark rights are needed when importing.

Yes, they are needed. Since this is explicitly 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 appropriate rights to trademarks. This position was also supported by the Constitutional Court of the Russian Federation in Ruling No. 171-O of April 22, 2004, which states that the prohibition of such a method of using the trademark of the copyright holder as the importation of products marked with such a mark into the territory of Russia is aimed at observing the international obligations of our country in field of intellectual property protection.

On the one hand, this is an argument in favor of the taxpayer. Suppose that a company has a license agreement under which the tax authorities are trying to challenge the economic feasibility of payments. The taxpayer may claim that he uses the rights to the trademark when advertising the relevant goods, so 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 license 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 gratuitous use by the taxpayer of property rights to a trademark. As we know, obtaining rights for free is income and is subject to income tax. And according to Article 146, it is also subject to VAT.

Accounting for expenses when taxing profits

Let's talk about the procedure for accounting for the costs of acquiring (creating) objects of intellectual property.

If an intellectual property object is an intangible asset, then its cost is repaid evenly by accruing depreciation over its useful life. The 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), expenses are recognized:

It would seem that the rules are quite simple, however, judicial practice suggests otherwise. So, for example, a non-exclusive right to use the software is transferred to the 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 period of using the program. The taxpayer says that he acquires a non-exclusive right to 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 being transferred, it did not matter if it was used for a long period.

In some cases, it is impossible to determine what rights we are transferring: exclusive, non-exclusive, whether they form intangible assets or not. So, for example, a taxpayer acquired a depository business, including some intellectual property items: databases about clients, according to certain commercial procedures, etc. All these expenses were written off by the taxpayer at a time. The tax authorities concluded that, in fact, intangible assets were acquired here, since the rights were exclusive. The arbitrators, on the other hand, 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 when transferring rights to intellectual property

The transfer of the right to intellectual property is subject to VAT. At the same time, from January 1, 2008, a VAT exemption applies to the transfer of exclusive rights to inventions, utility models, industrial designs, computer programs, databases, topologies 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 benefit. First of all, positive for the payer. Officials of the main financial department allowed not to tax the transfer of rights to these intellectual property objects under sublicensing 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 benefit does not apply to those cases where 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 we are only talking about selling a copy of the program.

Many programs are sold on disc in appropriate packaging. Therefore, the question often arises: is it necessary to impose VAT on the implementation of programs in sales packaging? Does this exemption apply? Both the Russian Ministry of Finance and the Moscow tax authorities unanimously declare that no. Since we are talking about the so-called "boxed" license, the terms of which are set out on the disk itself (packaging). In this case, the license agreement takes effect from the start of using the licensed program, that is, from the moment you agree to the license agreement. According to officials, since at the time of purchase the license agreement has not yet been concluded, the benefit cannot be applied. One can argue with such a position, since not a word says that the license agreement should be concluded at the time of transfer of the right.

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

Author's agreement and UST

Article 236 of the Tax Code expressly states that payments under an author's agreement are subject to taxation under the UST. At the same time, payments made under contracts related to the transfer of property (property rights) for use are not subject to UST taxation.

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 UST taxation are payments that are made under the 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?

Consider one of options when the remuneration is paid directly to the author. The position of the Russian Ministry of Finance is that these payments should be subject to UST. At the same time, the logic is as follows: Chapter 24 understands an author's agreement as any agreement related to the circulation of copyright, one of the parties to which is the author, including agreements in which a third party acts on behalf of the author. Such a position seems to be extremely controversial, since it is not clear where the Russian Ministry of Finance draws 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 jurisprudence in this regard yet. Therefore, it is quite difficult to predict how the dispute with the inspectors will end if the organization decides not to tax payments under UST 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.

Listeners ask...

By tradition, 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 (Article 1296 of the Civil Code of the Russian Federation), the customer received a non-exclusive right to use this program. How should the customer justify and reflect the costs of creating the program, including payment for the contractor's work? The specified intangible asset remains 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, NMA is always an exclusive right. The question itself states that the program remains on the balance sheet of the contractor, that is, it is he who is its copyright holder. Accordingly, the customer can reflect the costs associated with the acquisition of the program at a time as part of other costs associated with production and sale.

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 under 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 intellectual property is actually transferred under the contract, we are talking about a mixed contract. However, the risk is great enough that litigation cannot be avoided.

In this case, you need to refer to part 4, where it is directly stated 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 at all as such. This must be understood absolutely. You can use some kind of logo, you can put it anywhere, on any product, you can advertise it. But there will be no legal protection for this trademark in Russia. Any person can use the same logo, and it is impossible to influence this situation without proper registration.

It is incorrect to talk about the existing tax risks associated with gratuitous use, since, in fact, there is no trademark itself. As for 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 justified.

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

This question is very interesting, since 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 underway. In accordance with the Civil Code, we can extend this agreement to relations that arose before its state registration. To reduce tax risks, it can be recommended to make a clause in the contract 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 payments began. If there is no such clause at present, then nothing prevents this clause from being introduced now by drawing up the corresponding supplementary agreement, where the condition for the entry into force of the contract will be changed accordingly.

L.A. Kotova,
Deputy Head 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 taxpaying organizations is, among other things, remuneration under copyright agreements.
In Chapter 24 of the Tax Code, an author's agreement is understood to mean any agreement considered in part 4 of the Civil Code and related to the circulation of copyrights, provided that one of the parties to such an agreement is the author.
Thus, under agreements providing for the transfer by the author of the right to use his work within the limits established by the agreement, the tax base for the UST is determined taking into account the costs provided for in article 221, and from the amounts of remuneration under such contracts, the UST is not paid in the part to be credited to the Social Insurance Fund of the Russian Federation (clause 3 of article 238 of the Tax Code of the Russian Federation).
In the case of payment, for example, remuneration to the heir of property copyrights, 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.

Probably, you have ever come across such an inscription on Youtube as “the video is blocked by the copyright holder”. In such cases, one can only sigh in annoyance and exclaim that, they say, "these copyright holders do not allow you to breathe freely." But when you write, create something, you yourself encounter piracy, you are already on the other side of the barricades. Indeed, what is the logic? If you like, for example, a singer, then why not support him financially by buying a new album? Artists' income suffers greatly from illegal copying and distribution of songs. In the end, it may come to the point that it will be unprofitable to continue a career. In order for cultural figures (writers, artists and other professions) to be able to 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 (natural or legal) to a product of mental activity. Let's say a writer has written a novel and entered into an agreement with a film company to allow the plot of this book to be used in a new film. Then both parties - the writer and 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 his property and who have entered into an agreement with him are called 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 operation or design of existing products;
• trademarks, emblems and other trade marks;
• programs for electronics (from firmware to games);
• objects of related rights.

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

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 regulates 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, and the like, 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 protect reputation;
  • the right to publish;
• property:
  • the right to use the work in any form and in any way;
  • right to copyright.

Related rights

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

Patent law

Patent law protects the rights of an author to an invention, design solution. In other words, industrial property. Recently, this type of intellectual property has also begun to affect achievements in the field of breeding (bringing 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 identity includes emblems, company names, logos, even shop signs in your backyard. Organizational identity rights formally include:

• the right to a trademark;
• the right to a trade 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 manufacturers of scarves to register the place of origin of the goods: Orenburg downy scarves are made in this city using a special technology and in a peculiar style

Right to trade secrets

Secret technologies are trade secrets. Such secrecy allows the manufacturer to earn extra money on 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 technology know-how can be bought/sold… or sniffed out for free.

How to get intellectual property rights

A person's right to the result of his labor is recognized by law a priori. But in order to protect the object from use by others, it is better to formalize your authorship and the rights associated with it.

Registration of works (copyright)

If you need to register your work, contact a notary or one of the special law firms. In any case, an identifiable instance must be provided. It is important that it must be exactly material, in digital form you simply will not accept it. That is, if you register authorship for a book, you need to submit a printed text, for a piece of music - notes. It is better to bring also a digitized copy on an information carrier. This will then allow you to prove that you are the creator. There are separate requirements for text works: they must be printed on A4 sheets with a font of at least 12 pt on one side of the page. And also in the work should be 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 terms with the copyright holder (for example, with the publishing house, if the book has been published) and sign the contract. The agreement must be in your hands in two copies. It is used as proof of authorship. You can register your work in a special registry with an international number, but this is not mandatory under current law.

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

Take the application, receipt of payment of the state duty and the contract to the copyright registration department of the selected institution.

Registration of other forms of intellectual property

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

Photo gallery: sample 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 an author's order agreement. A state fee is charged for the registration of intellectual property rights.

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, the rights belong to his heirs. The situation is different for commercial properties. In case of non-payment of annual state fees for maintaining a patent in action, it may be terminated before the expiration date.

Table: expiration dates and renewals of the exclusive right

Name of the object of exclusive right	Initial validity period	Possibility of renewal
Invention Patent	20 years from the date of application	Not more than 5 years if the invention is a medicinal product, pesticide or agrochemical, the use of which requires a permit.
utility model patent	10 years from the date of application	-
A patent for an industrial design (most often this is a design)	5 years from the date of application	For 5 years at the request of the patent owner (the plus is 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 life of the author and another 70 years after death	-
Co-authored work	Throughout the life of the author and co-authors and another 70 years after the death of the last co-author	-
Work created anonymously or under a pseudonym	70 years from the date of the first seal	-
A work created by an author who participated in the Great Patriotic War or worked during this period	-	Extendable for 4 additional years
The work of the author, who was repressed and then rehabilitated	70 years since rehabilitation	-
Work published after the death of the author	70 years from the date of the first seal	-

How Intellectual Property Can Be Used

It so happened that now good ideas are worth millions. For example, many film companies pay good money for outlining the plot of the 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 whatever they want with it. For a simple layman, this will be problematic. To provide him with this opportunity (for a fee or for free - decide for yourself here), you can:

• fully transfer (sell) the rights to intellectual property. This is called alienation of the exclusive right, 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 be preserved;
• sign a license agreement. Then a 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. The license is:
  • exceptional. Then you will not be able to enter into other similar contracts;
  • non-exclusive. You can issue an infinite number of licenses and earn more.
• waive rights in favor of another person or state.

The owner of intellectual property may permit others to use it under license

Alienation of the exclusive right

100% sale of intellectual property is subject to a written agreement. You must specify the amount of the reward. In special situations, such an agreement must undergo state registration (you will need to contact the Federal Service for Intellectual Property and inform about the changes made):

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

Must be registered:

• inventions;
• useful models;
• industrial samples;
• selection achievements;
• trademarks;
• service marks;
• appellation of origin of goods.

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

Skype was developed by entrepreneurs Niklas Zennström Janus Friis. The trademark was owned by Skype Limited, which the men founded together. After its sale, ownership passed to Microsoft, which commercially benefits from the use of the logo. But copyright was not alienated. Brand and authorship have different types of intellectual property rights.

Waiver of exclusive right

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

Intellectual Property Valuation

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

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

Evaluation features:

• the value of the appraisal 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 operation of 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 (principle of the most efficient use).

In the evaluation procedure, consider the uniqueness of the objects and their current use, the cost of production and implementation, the degree of development, the possibility of legal protection, the receipt of remuneration for use.

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

Here is one very famous example: when the Russian-French artist Marc Chagall (he was stubbornly not recognized in his homeland, 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 imagination, who knew about his intellectual property rights, would have long ago declared injustice, but Marc Chagall could not do anything.

As they say, you need to learn from the mistakes of the past. Today, the strongest evidence of your authorship will be the "presumption of authorship" - the earliest document of the available copies. It will be 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 registry.

Video: Protecting Intellectual Property Rights (Part 1)

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

• about the recognition of the right;
• on the suppression of actions that violate the right or create a threat of its violation;
• for damages;
• on the seizure of a 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 infringement with an indication of the actual copyright holder - to the violator of the exclusive right.

If it was possible to prove their right and its non-observance, the perpetrator will be held accountable. It can be like this:

• indemnification 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;
  • at twice 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 wage 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 violations are committed by a group of persons, according to collusion or in particular large size- imprisonment for up to six years with or without 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.

Video: Protecting Intellectual Property Rights (Part 2)

So, you can make good money selling intellectual property rights. But many people don't want to pay to use an idea or object, even if it's worthwhile, and just copy it. In this case, the copyright holder may complain about the violation of copyright or other rights. The only problem with protecting intellectual property is that you must first catch the infringer and prove his guilt. But do not be afraid to defend your rights: if you are really an author, the law is on your side.

The beginning of the manifestation of human intellectual activity dates back to ancient times. However, the need for its legal regulation arose much later. Historically, the first institution of intellectual property law was copyright. Already in the era of Antiquity, copyrights for literary works began to be protected. The facts of borrowing someone else's work, as well as its distortion, were condemned.

IP law was formed with the development of "mass production" in the spiritual sphere and the emergence of certain clashes of interests of subjects of intellectual activity. Note that intellectual property law does not interfere with the process of intellectual activity.

Intellectual property refers to the results of intellectual activity, as well as the means of their individualization, protected by law (Article 1125 of the Civil Code). Intellectual property has a number of characteristic features. Let's consider the most basic ones.

1) Intangibility. This is the main and most important feature that distinguishes it from property in the traditional sense. Possessing some thing, you can dispose of it at your own discretion: use it yourself or transfer it to another person for temporary use. At the same time, two people cannot use the same thing at the same time. With intellectual property, the situation is different, since in this case the same object can be used in different places at the same time. And the number of users is unlimited.

2) Absoluteness. Means that it opposes all other persons. No one except him has the right to use a specific copyright object of intellectual property. Note that the absence of a ban on the use of an object cannot act as a permit.

3) Embodiment of intangible objects of intellectual property in material objects. Let's explain with an example. Having bought a laser disc with musical works, you become the owner of the goods, that is, the material carrier. However, you do not acquire any rights to the works themselves stored in this facility. In other words, you are free to do whatever you want with the disc, but the music does not become your property. No changes (arrangement, processing) can be made to it.

4) The need for direct reflection in the law of the object of intellectual property. This principle means the following. Not every result of creative activity can be considered an object of intellectual property. This is also true for means of individualization. For example, a domain name is a means of individualizing a site in the global network. However, it cannot be recognized as intellectual property, since the law does not say anything about it.

A complete list of intellectual property objects is contained in Art. 1225 GK. No other result of intellectual activity not mentioned in this article is intellectual property. Therefore, no intellectual property rights arise for this object. This means that anyone can use it without having any permissions.

There are two categories of intellectual property: industrial property and copyright. Elements of industrial property: inventions, trade names, industrial designs, trademarks, utility models, service marks, names of geographical places.

Literature;
- music;
- science;
- art;
- cinematography.

The protection of industrial property provides for measures that limit unfair competition. It is part of a larger category called "intellectual property". must be registered. Their creation, use and protection must comply with all the rules established for intellectual property.

The Patent Office deals with the registration of industrial property. The procedure ends with the issuance of a patent or certificate. Only after registration, intellectual property will be given the status of industrial property. This condition does not apply to .

Let us briefly characterize some types of intellectual property:

Invention. Invention means technical solution covering any area of ​​human activity. It may refer to a product or a process. The main conditions are: industrial applicability, novelty, availability of an inventive step. The products of the invention are strains of microorganisms, cells of living and plant organisms, substances, devices. Method - an algorithm for performing actions on a material object by means of technical means to achieve a result.

Useful model. This is a technical solution aimed at a specific device. Recognition requirements are a sign of novelty and industrial applicability.

Industrial model. It is presented in the form of an artistic and design solution. It characterizes the appearance of a product made by an industrial or handicraft method. The provision of legal protection to the sample is carried out in case of its novelty and originality. The originality of an industrial design is determined on the basis of essential features that determine the creative nature of the specifics of the product. The essential features of an industrial design include such features that determine the set of aesthetic and (or) ergonomic features of the appearance of the goods. This may include the form color solution configuration, ornament pattern.

Trademark. Trademarks and service marks are designations that can be used to individualize the work performed, goods, and services provided by individuals or legal entities.

Company name. It is used to identify an enterprise or a company as a whole. Sometimes - without presenting the goods and services they provide in the respective markets. A company name that has received the status of a protected object of intellectual property symbolizes the business reputation of an economic entity. At the same time, it also acts as a valuable asset. A trade name does not require special registration. After its registration in the Unified State Register of Legal Entities (Unified State Register of Legal Entities), it is subject to protection on the territory of the Russian Federation.

Place name. It is possible to obtain the exclusive right to use the name of a place after state registration and obtaining an certifying certificate.

intellectual law

Intellectual property refers to a right that is recognized by law in relation to objects of intellectual property. There are three types of intellectual property rights:

Exclusive right. We are talking about the right to use objects of intellectual property in any manifestations, both in form and in methods. However, this right includes the ability to prohibit all other persons from using this property without the permission of the copyright holder. The emergence of an exclusive right applies to all objects of intellectual property;

Personal non-property right. It is the right of the citizen-author of this object of intellectual property. Such a right arises only under conditions enshrined in law;

Other right. This group includes rights that are heterogeneous in nature. Their main feature is the absence of signs by which they can be attributed to the first or second group. In particular, the right to follow, access.

Transfer of intellectual property

Intellectual property cannot be transferred as it is an intangible object. We can only talk about the transfer of rights to it. This is especially true for exclusive rights.

An exclusive right can be disposed of in several forms:

By alienating the exclusive right. This is due to the transfer of the exclusive right of one person to another in in full. This procedure is accompanied by the loss of the legal possibility of using the intellectual property object by the previous copyright holder;

Granting the right to use an intellectual property object on the basis of a license agreement. In this case, the copyright holder retains the exclusive right. And the licensee receives the right to use the object to a limited extent, provided for by the license agreement. The license itself can be of two levels: exclusive and simple. The first option prohibits the right holder from entering into similar agreements with other persons, and the second option reserves this right for the right holder.

Copyright and industrial property can receive official legal protection only after their state registration. Intellectual property can be registered in various ways:

Protection of intellectual property rights is provided by the legislative method based on the content and consequences of a real violation. The legislation provides for civil, administrative and criminal liability for violations of intellectual property rights.

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The Internet has quickly become an integral part of the life of almost every person. It is not surprising that the rules governing intellectual property rights sometimes do not keep pace with such rapid development. The number of lawsuits triggered by their violation is growing exponentially. In this regard, it is necessary to have a clear idea of ​​what protected objects of intellectual property are and how they are protected.

The concept and objects of intellectual property

World Intellectual Property Organization (WIPO) was established on July 14, 1967. Convention establishing it, signed in Stockholm, gives intellectual property a fairly broad definition. She considers the objects of intellectual property protection:

• literary, artistic works and scientific works (protected by copyright);
• performing activities of artists, phonograms and radio broadcasts (protected by related copyrights);
• inventions, utility models, industrial designs, trademarks, service marks, trade names, commercial names and designations (protected by patent law and industrial property law);

In the laws of individual states, including the Russian Federation, the concept of intellectual property is somewhat narrower, but not by much. Although the Civil Code does not define this phenomenon and does not formulate the rights that relate to intellectual property, it plays an important role in the formation of a legal system that addresses this issue. Section VII of the Civil Code is entirely devoted to the protection of exclusive rights, it clearly distinguishes two groups into which objects of intellectual property in the Russian Federation:

1. direct results of intellectual activity;
2. means of individualization equated to them;

Objects of intellectual property and their features

Article 1225 of the Civil Code interprets intellectual property as the results of intellectual activity and means of individualization under the protection of the law. Characteristic features of intellectual property:

• intellectual property is intangible. In this, it radically differs from the classical understanding of property. When you own something, you have the right to dispose of it as you wish. But it is impossible to use the same item with someone else at the same time. The possession of intellectual property makes it possible at the same time to use it for personal needs and allow another person to own it. In addition, there may be hundreds of thousands and even millions of such owners, and each of them will have the right to use the intellectual property object;
• intellectual property is absolute. This implies that one owner of the rights to an intellectual property object is opposed to all persons who do not have the right to use this object until they receive official permission from the owner to do so. At the same time, the fact that a ban on use has not been announced does not mean that everyone can use it;
• intangible objects of intellectual property are embodied in material objects. When you buy a book, you become the owner of only one copy out of many thousands of copies, but at the same time you have not acquired any rights to the novel printed on its pages. You have the right to dispose at your own discretion only of the information carrier belonging to you - to sell, donate, constantly re-read. But any interference in the text of the work, its copying for the purpose of distribution will be unlawful;
• in Russia, an object must be explicitly called intellectual property in law. Not every result of intellectual activity or a means of individualization falls under the definition of intellectual property. For example, a domain name individualizes a site on the Internet and can serve as a means of individualizing the person who created this resource, but at the same time it cannot be considered intellectual property, since this is not provided for by law. Scientific discoveries, of course, occur as a result of intellectual activity, but at the moment they are not considered an object of intellectual property protection in the Russian Federation;

Main types of intellectual property rights

Personal non-property rights.

They cannot be taken away or transferred to another person, the owner of such rights can only be the author, and measures to protect them can be initiated either by the author or his heirs. The cases of occurrence of these rights are listed in the legislation.

Exclusive right.

Its owner may be a citizen or a legal entity, one subject or several at once. It implies the possibility of using objects of intellectual property in various forms and in ways that do not go beyond the law, including suppressing their use by third parties without obtaining prior consent. The absence of a ban does not mean otherwise.

The validity of the exclusive right is limited by the terms established by the legislation.

Within the Russian Federation, there are exclusive rights to objects of intellectual property protection, which are regulated by the Civil Code of the Russian Federation and international treaties.

Other rights.

There are other rights not listed above. These include the right of access and the right to follow.

Intellectual rights are not directly related to the right of ownership and other real rights to a material carrier (thing) necessary for their reproduction or storage.

What are the objects of intellectual property (examples)

1) Works of science, literature and art.

• literary works. The legislation of the Russian Federation means by this term a work of any genre that expresses thoughts, images and feelings using words. Its obligatory characteristic is the originality of the composition and presentation. The concept of a literary work, in addition to fiction, also includes scientific, educational and journalistic works. The form of the work does not have to be written, it can be its oral presentation, including before any audience. The carriers of a literary work can be paper, CD, tape recording, gramophone record.
• letters, diaries, personal notes. Protected intellectual property includes letters, diaries, personal notes and other similar documents of an individual nature. At the same time, from the point of view of the law, they are all included in the group of literary works. Only their author has the exclusive right to dispose of letters and diaries, therefore, without his consent, their publication and other distribution is illegal. It does not matter how valuable the content of personal documents is in terms of literary heritage. The law equally stands for the protection of the letters of both a famous writer and scientist, and ordinary person. The main criterion in this case is the individual nature of the information contained in them. To publish personal notes and diaries, you must first obtain the consent of the author and addressee, when it comes to letters.
• interviews, discussions, letters to the editor. An interview is a conversation during which a journalist, reporter, presenter asks questions to an invited person whose opinion on the issues discussed is of public importance. Subsequently, the recording of this meeting is published in print or online publications or goes on television and radio.

  The object of the interview is most often a person whose personality is of increased interest to a particular audience. In order for his characteristic features to be revealed in the course of the conversation, intelligence and humor to appear, the questions asked of him must be interesting, at times even provocative. If the meeting plan is carefully thought out by the journalist, and the composition is well-built, such an interview has every chance of becoming an object of intellectual property protection.

  Letters from readers or listeners sent to the editors of the media are not inherently private and can be published if the letter itself does not contain a corresponding prohibition. It is also considered to be subject to intellectual property protection, as it implies creativity in its writing. The position of the author on the issue that served as the topic of the appeal, as well as his thoughts on this matter, the manner of presentation, including the literary techniques used in the letter, comes first.

• translations. The translation of any text into a language other than the original language is considered a separate type of literary work, protected by law. It should be borne in mind that translation into another language requires the translator, first of all, to preserve the style of the original work, and he must also select the language means that correspond as closely as possible to those used by the author when creating his text. But when the translator is faced with the task not to convey all the artistic colors of the source, but only to perform a literal translation, the so-called interlinear translation, the result of his work will not be the object of legal protection of intellectual property.
• computer programs. Today, computer software is considered a separate, very important type of product, which is the result of intellectual creative activity using sophisticated equipment. It is no secret that the production cost of software tools is much higher than the devices themselves for their use - computers and smartphones. Russian legislation equates computer programs and databases with literary and scientific works, but they are not considered inventions. As an object of intellectual property, a program for electronic computers is a unique set of data and commands designed to achieve a specific result of the operation of computers and similar devices. This also includes materials obtained during its development, as well as the video and audio sequence that is played while using the application. But the protection of programs cannot be considered absolute: they are forbidden to be copied without the permission of the authors, but the algorithms underlying their work are not protected in any way.
• dramatic works. The objects of intellectual property that are subject to protection in the field of copyright also include dramatic works, regardless of their genres, methods of embodiment on the stage and forms of expression. Dramatic works, from the point of view of the law, represent a special kind, which has specific artistic means and method of demonstration. For example, the dialogues and monologues of the characters prevail in the text of the drama, and such works are realized mainly in front of the audience on the stage.
• musical works. When artistic images are transmitted using sounds, the work is considered musical. The specificity of sound is that it creates pictures or actions in the listener's imagination, without resorting to a specific meaning like text, or to visible images like painting. At the same time, the sounds are organized by the will of the composer into a harmonious structure with a unique intonation. Works of musical art are perceived by listeners either directly when performed by musicians, or using a variety of sound carriers - gramophone records, cassettes, compact discs. Works performed before the general public are protected as objects of intellectual property.
• scenarios. Also, the objects of intellectual property protection include scripts that serve as the basis for staging films, ballets, festive mass performances. They can be different and meet the requirements of precisely those genres of art for the implementation of which they are intended. So, the scenario of the film is completely different from the scenario of the closing of the Olympic Games. At the same time, it is considered an object of intellectual property and is subject to protection, regardless of whether it is original or created based on any literary work.
• audio and video. Perhaps the most massive group today is made up of audiovisual works, which include many different forms, implying simultaneous sound and visual perception by the public. These are movies, TV shows, video clips, cartoons. Each of these types, in turn, is divided into certain genres and methods of performance. What unites them is that they are all designed for the simultaneous perception of the visual and sound range, the images replacing each other are inextricably linked with the accompanying cues and music. Works on the creation of similar works at the same time a large number of authors, the contribution of each of which is necessary to create an integral work of art. However, this does not exclude the possibility that, for example, elements of one film - costumes, scenery, shots - can act as separate objects of intellectual property protection.
• fine arts and decorative arts. There are so many forms and technical methods for the implementation of creative ideas that all possible types of works are fully described in the legislation. visual arts, which may be subject to intellectual property protection, is not possible.

  Of course, this includes masterpieces of painting, graphics, sculptures, monuments, design developments, comics and many more ways of expressing artistic thought. They are united by one common feature: works of fine art cannot exist in isolation from those material carriers with the help of which they are brought to life. Thus, the masterpieces of painting cannot be separated from the canvas on which they are painted, and the statues of Italian Renaissance masters cannot be separated from the marble from which they are carved. It is common for works of this type to exist in a single copy, and therefore in their relation there is a need to distinguish between ownership of a particular sculpture and copyright for a work of art.

• copies of works of art. The specificity of works of fine art is that they can not only be replicated through printing, but also be recreated in the form of a copy. Naturally, such reproduction of objects of legal protection of intellectual property can be carried out only with the consent of the copyright holder - the author, his heirs, or with the permission of the owner, for example, a museum. The exception is works of fine art that are on public display, in particular, monuments, which are allowed to be copied without restrictions if the terms of protection have long expired.
• works of arts and crafts and design. Distinctive features of works of arts and crafts can be called their intended use in everyday life and at the same time highly artistic performance. In other words, they meet at the same time the requirements of utilitarianism and education of artistic taste. In some cases, such items may exist in a single copy, but most often their production occurs in droves. Before starting the production of a work of arts and crafts, the manufacturing enterprise must approve the sketch by a specially created art council. From that moment on, it becomes an object of intellectual property and is subject to protection.

2) Inventions, utility models, industrial designs.

• invention. Objects of intellectual property are inventions if it is a newly created device, method, substance or strain of a microorganism, a culture of plant or animal cells. Inventions also include the use of a previously known device, method, substance for a completely different purpose. In particular, devices are represented by machines, devices, mechanisms, vehicles.
• utility model. This concept refers to innovative solutions in the form of devices intended for use in industry for the manufacture of means of production and consumer goods. Their difference from inventions lies in the fact that they are purely utilitarian in nature and do not constitute a significant contribution to the development of technology. Like other objects of industrial intellectual property, a utility model is the result of the creative activity of a person or a group of people, has a sign of novelty and can be used in industry.
• industrial model. An industrial design is understood as a variant of the artistic and constructive solution of any product, which is the standard of its appearance. What it has in common with the invention is that, being the result of mental labor, it is embodied in material objects. But, unlike an invention, which substantiates the technical side of a product, an industrial design is aimed at solving its external appearance, including the development of precise methods for translating design ideas.

3) Means of individualization.

• brand names. The word "firm" in the Russian business language serves to designate an entrepreneurial structure, which makes it possible to distinguish it from many similar formations. The company name must include an indication of the organizational and legal form of the enterprise (LLC, OJSC, CJSC, PJSC), line of business (production, scientific, commercial). The law prohibits the use of words in the company name that may mislead consumers.
• trademark. This object of intellectual property serves to indicate the ownership of goods manufactured by various companies to one or another manufacturer. A trademark is a kind of symbol placed directly on a product or its packaging, and serves to identify a product of a particular manufacturer among similar ones.

  Trademarks, depending on the form chosen by the owner company, are pictorial, verbal, combined, three-dimensional and others.

  Trademarks expressed with words have many variations. The most common options include the use of the names of famous people, characters of works, heroes of myths and fairy tales, names of plants, animals and birds, planets. Often there is an appeal to words from the ancient Roman and ancient Greek languages, as well as specially created neologisms. A trademark can also be a combination of words or a short sentence. The object of intellectual property protection is also considered the visual design of a verbal trademark (logo).

  Figurative trademarks involve the use of various designs and symbols. Volume signs- this is any three-dimensional object that the company considers the object of intellectual property protection. An example is the original shape of a strong alcohol bottle.

  Combined trademarks combine all of the above features. The simplest example of this type of trademark is bottle labels or candy wrappers. They contain the verbal and figurative components of the trademark, including the corporate color palette.

  In addition to the above, the law allows the registration of trademarks in the form of sound combinations, aromas and light signals. Most often, foreign manufacturers are the initiators of this.

• service sign. Close in purpose to a trademark is a service mark. It is intended to distinguish the services provided by a particular individual or entity from others of the same kind. For a service mark to be officially recognized as such, it must be new and registered. In Russia, the requirements for trademarks and service marks are identical.
• the name of the place of origin of the goods. The appellation of origin of goods implies the use in the designation of goods of the name of the country, city, town for its identification in connection with unique properties, which are due to the peculiarities of geographical origin, the human factor, or a combination of them. Although at first glance this intellectual property object is similar to a trademark and a service mark, it has distinctive features. This is a mandatory indication of the origin of the product from a particular state, region or area. Options may be the name of the country (Russian), city (Volgograd), settlement (Sebryakovsky). Both officially recognized names (St. Petersburg) and slang (St. Petersburg) can be used; both full (St. Petersburg) and abbreviated (Petersburg), both used today (Petersburg) and gone down in history (Leningrad).

Non-traditional objects of intellectual property

The word "non-traditional" in relation to this group objects of intellectual property motivated by the fact that their protection is not subject to either copyright or patent law.

Non-traditional items include:

1) topology of integrated circuits

The topology of an integrated circuit is a spatial and geometric arrangement of a set of elements and connections between them, imprinted on a material carrier, namely on a crystal. This intellectual property object is of particular interest for unauthorized copying by interested parties, so its protection must be carried out with particular care.

2) selection achievements

Selection is a human action aimed at obtaining plants and animals with a predominance of the necessary characteristics. In this case, protected objects of intellectual property are achievements in solving a certain practical problem, namely new variety plants or animal species.

3) know-how

A production secret (know-how) is technical, organizational or commercial information that is protected from misuse by third parties. The obligatory conditions for classifying information as know-how are the following:

1. it represents a certain commercial value in the present or future;
2. there is no free access to it on the basis of the law;
3. the owner ensures its protection to maintain confidentiality;

The Law of the Russian Federation "On Trade Secrets" regulates the legal norms relating to the protection, transfer and use of production secrets. In this case, know-how is considered as the results of intellectual activity, which are subject to protection as a trade secret.

At the same time, the concept of a trade secret covers a wider range of phenomena than production secrets (know-how). It may include various databases, accounting documents and other information that should not be made available to a wide range of people for any reason. Naturally, such information is not subject to intellectual property protection, although it has common features with them.

The attribution of the above objects to non-traditional is due to their ambiguity when trying to accurately determine the type of legal protection. A huge number of lawsuits in defense of this information is caused by the need for legislative regulation of this area. The specificity is manifested in the fact that protection actions in this case are not aimed at the form, but exclusively at the content of the intellectual property object.

How is the exclusive right to intellectual property transferred?

Based on Article 1232 of the Civil Code, the right to the result of intellectual activity is recognized and protected subject to its state registration. The alienation of the exclusive right to the result of intellectual activity or the granting of the right to use such a result under an agreement is carried out through the state registration of the relevant agreement: an agreement on the alienation of an exclusive right or a license agreement.

According to paragraph 1 of Article 1234 of the Civil Code, “under an agreement on the alienation of an exclusive right, one party (right holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity ... in full to the other party (acquirer).”

In accordance with paragraph 1 of Article 1235 of the Civil Code, “under a license agreement, one party - the owner of the exclusive right to the result of intellectual activity ... (licensor) grants or undertakes to grant to the other party (licensee) the right to use such result ... within the limits provided for by the agreement. The licensee may use the result of intellectual activity ... only within the limits of those rights and in the ways provided for by the license agreement.” Consequently, when signing an agreement on an intellectual property object, the cost depends on the amount of rights to use it, which the licensee acquires.

Who controls goods containing intellectual property and how

To begin with, it is necessary to remember that an economic product that contains the result of intellectual activity and at the same time does not have intellectual property rights to it, reflected in the license agreement, is called counterfeit.

When considering products that include objects of intellectual property protection, the customs authorities in their practice distinguish two types of goods that can be called counterfeit products:

• a product that is an imitation of the original product (fake);
• original goods that are imported into the territory of the Russian Federation in violation of the law in the field of intellectual property;

Article 51 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which deals with specific requirements for border measures, refers to goods that illegally use a trademark, as well as goods that have been produced in violation of exclusive rights. At the same time, the first group includes all products and their packaging, on which a trademark belonging to another person is illegally applied, or a mark that is very similar to a registered one. These actions undoubtedly violate the rights of the owner of this trademark. All goods that are the result of copying made without obtaining the proper consent of the copyright holder or the person authorized to protect the intellectual property object are considered to be manufactured in violation of rights.

The sequence of actions for the protection of intellectual property objects is provided for in Part 4 of the Civil Code. Ensuring the legal procedure for granting legal protection to objects of intellectual property in the Russian Federation is one of the main functions of FIPS. The Federal Customs Service carries out activities to protect intellectual property rights within its competence, namely the customs control of goods containing objects of intellectual property crossing the state border. At the same time, a distinctive feature of the activities of the customs in this direction is that not the intellectual property objects themselves are subject to customs control, but goods that contain intellectual property objects moved across the border of the Russian Federation.

Within their powers, the customs authorities may take measures aimed at suspending the release of goods, based on the application of the holder of exclusive rights to objects of copyright and related rights, to trademarks, service marks and the right to use the appellation of origin of goods. At the same time, the scope of actions of the customs authorities does not include issues of ensuring the protection of rights to inventions, utility models, industrial designs, selection achievements, topologies of integrated circuits, production secrets (know-how), commercial designations and uniform technologies. But this provision should not be associated with the customs valuation of goods containing intellectual property. For goods that include any type of intellectual property protection, the customs value is calculated taking into account the value of such intellectual property.

How intellectual property rights are protected

According to the current legal norms, all disputes, the subject of which is the protection of violated rights to intellectual property, considered and resolved by the court.

To consider claims related to the protection of such rights, a special division of the arbitration court has been created - the Court for Intellectual Property Rights.

At first instance, they hear cases and disputes:

1. on invalidating, in whole or in part, regulatory legal acts of federal executive bodies, in particular, in the field of patent rights, rights to achievements in breeding activities, to the topology of integrated circuits, to secrets of production (know-how), to means of individualization of legal entities, goods , works, services and enterprises, the rights to use the results of intellectual activity as part of a single technology;
2. on the need for legal protection or the termination of its validity in relation to the results of intellectual activity and means of individualization of legal entities, goods, works, services and enterprises (with the exception of objects of copyright and related rights, topologies of integrated circuits), including:
   1. on invalidating decisions and actions (inaction) of Rospatent, the federal executive body for selection achievements and their officials, as well as bodies authorized to consider applications for granting a patent for secret inventions;
   2. on the invalidation of the decision of the body of the Federal Antimonopoly Service on the recognition of unfair competition of actions related to the acquisition of the exclusive right to means of individualization;
   3. about the establishment of the owner of the patent;
   4. on the invalidation of a patent, a decision on granting legal protection to a trademark, an appellation of origin of goods and on granting an exclusive right to such an appellation;
   5. on early termination of the legal protection of a trademark due to its non-use;

Cases on claims corresponding to the above problems are subject to consideration by the Intellectual Property Court, regardless of who exactly the parties to legal relations are - organizations, individual entrepreneurs or ordinary citizens.

As a special form of protection of intellectual property is application of an administrative order, which consists in the consideration by the federal executive body for intellectual property and the Ministry of Agriculture (for achievements in the field of breeding) of issues related to the filing and consideration of applications for the grant of patents for inventions, utility models, industrial designs, breeding achievements, trademarks, signs services and appellations of origin of goods. Also, the competence of these bodies includes registration of the results of intellectual activity and means of individualization with the mandatory issuance of title documents, contesting the granting of protection to these results and means of legal protection or its termination. Decisions of these bodies come into force from the date of adoption. If necessary, they can be challenged in court in the manner prescribed by law.

Claims for the protection of objects of intellectual property may be filed by the owner of the rights, organizations managing rights on a collective basis, as well as other persons provided for by law.

The methods that are used in the protection of intellectual property objects are divided into general, listed in Article 12 of the Civil Code, and special, which are specified in Part 4 of the Civil Code.

In the process of protecting personal non-property rights, the following are applied:

• recognition of the right;
• restoration of the situation that existed before the violation of the right;
• suppression of actions that violate the right or create a threat of its violation;
• compensation for moral damage;
• publication of the court decision on the violation;
• protection of honor, dignity and business reputation of the author;

Protection of exclusive rights to objects of intellectual property and means of individualization is carried out both by general and special methods.

Common claims include:

1. on the recognition of the right - to a person who denies or otherwise does not recognize the right, thereby violating the legally protected interests of the right holder;
2. on the suppression of actions that violate the right or create a threat of its violation - to the person committing such actions or making the necessary preparations for them, as well as to other persons who have the power to suppress such actions;
3. on compensation for losses - to a person who illegally used the result of intellectual activity or a means of individualization without a preliminary agreement with the right holder (non-contractual use) or who violated his exclusive right in another form and caused damage to him, including violating his right to receive remuneration;

As special methods of protection of intellectual property objects are used:

1. the ability to seek compensation in lieu of damages. Compensation is subject to recovery if the fact of the offense is proven. In this case, the right holder who applied for the protection of the right is not obliged to prove the amount of losses caused to him. The amount of compensation is determined by the court, based on the limits established by the Civil Code of the Russian Federation, depending on the nature of the violation and other circumstances of the case, and taking into account the requirements of reasonableness and fairness;
2. presentation of a demand for the withdrawal of a material carrier - to its manufacturer, importer, custodian, carrier, seller, other distributor, unscrupulous purchaser;
3. publication of a court decision on the violation committed, indicating the present copyright holder;
4. liquidation by a court decision of a legal entity in respect of which a repeated or gross violation of exclusive rights has been established, at the request of the prosecutor, as well as termination of the registration of a citizen as an individual entrepreneur;

It is possible to protect intellectual property with the use of technical means, measures of criminal law and administrative liability.

However, the main point of this process should be the registration of rights to the object of intellectual property. If you are not the owner of title documents, you will have to prove your direct involvement in the development of the object of protection.

As you can see, registering the right to an object of intellectual property is a complex and lengthy process. If you do not want to delve too deeply into this issue, or if you want to get the perfect result right away, without making mistakes, then you should trust the professionals. You can use the services of the company "Royal Privilege", which has rich legal experience. Specialists will control the entire registration process from the first days of application to the receipt of rights to an intellectual property object.

The Intellectual Property and Intellectual Property section of the Intellectual Property Library is an introduction. It discusses the general provisions on what intellectual property is, why it is needed and how to protect it. The information will be useful for students, lawyers, whose specialization is not related to intellectual property, entrepreneurs, as well as those who first encounter Russian and international intellectual property law.
If you do not find the answer to your question, we suggest looking for it in other, more specialized sections of the Sum IP Intellectual Property Library.

1. What is intellectual property?

According to Article 1225 of the Civil Code intellectual property - these are the results of intellectual activity and means of individualization protected by law. The main features (characteristics) of intellectual property:

but) Intellectual property is intangible. This is its main and most important difference from ownership of things (property in the classical sense). If you have a thing, you can use it yourself or transfer it to another person for use. However, it is impossible at the same time to use one thing together independently of each other. If you own intellectual property, you can use it yourself and at the same time grant rights to it to another person. Moreover, there can be millions of these persons, and all of them can independently use one object of intellectual property.

b) Intellectual property is absolute. This means that one person - the right holder - is opposed by all other persons who, without the permission of the right holder, are not entitled to use the object of intellectual property. Moreover, the absence of a ban on using the object is not considered permission.

in) Intangible objects of intellectual property are embodied in material objects. By purchasing a disc with music, you become the owner of the thing, but not the copyright holder of the musical works that are recorded on it. Therefore, you have the right to do whatever you want with the disc, but not with the music. Unlawful, for example, will change a piece of music, arrange or otherwise process

d) In Russia the object must be explicitly called intellectual property in law. That is, not every result of intellectual activity and not every means of individualization is intellectual property. In particular, a domain name individualizes a site on the Internet and can individualize a person using this site, however, a domain name is not intellectual property, because not mentioned as such in the law. Undoubtedly, discoveries are the result of intellectual activity, but at present they are not recognized as intellectual property in Russia.

2. Objects of intellectual property

Objects of intellectual property are exhaustively listed in Article 1225 of the Civil Code of the Russian Federation. If some result of intellectual activity is not mentioned in Article 1225 of the Civil Code of the Russian Federation, then it is not intellectual property and intellectual rights to it do not arise. Therefore, any person has the right to use it without anyone's permission.
All objects of intellectual property can be divided into several groups. These groups are often referred to as intellectual property law institutions. These include:

1. Non-traditional objects of intellectual property.
2. legal entities, enterprises, goods and services.

Below is scheme of intellectual property objects.

3. What is industrial property?

The definition of industrial property is given in the Paris Convention for the Protection of Industrial Property of 1891 by listing the objects that relate to it. In accordance with the Convention industrial property includes:

• invention patents;
• utility model patents;
• patents for industrial designs;
• trade names;
• geographical indications and appellations of origin of goods.

Separately, the protection of industrial property includes measures to curb unfair competition. Industrial property is thus part of the broader concept of intellectual property.

4. Intellectual rights. Types of intellectual rights.

Intellectual rights These are the rights that are recognized by law on objects of intellectual property. As shown in the diagram, there are three types of intellectual rights:

1. Exclusive right is the right to use intellectual property in any form and by any means. At the same time, the exclusive right includes the ability to prohibit all third parties from using intellectual property without the consent of the copyright holder.
   The exclusive right arises for all objects of intellectual property.
2. Moral rights These are the rights of a citizen-author of an intellectual property object. They arise only in cases provided for by law.
3. Other rights are heterogeneous in nature and are singled out in a separate group, because cannot be attributed to either the first or the second. Examples are the right to access, the right to follow.

5. Transfer of intellectual property.

Intellectual property itself cannot be transferred, because is an intangible object. Therefore, only intellectual rights to it, primarily the exclusive right, can be transferred. The main forms of disposal of the exclusive right are presented below:

1. Alienation of the exclusive right, those. in full from one person to another. In this case, the previous copyright holder completely loses the legal ability to use the IP object.
2. Granting the right to use an IP object under a license agreement. The exclusive right is retained by the copyright holder, however, another person (the licensee) receives the right to use the object to the extent established by the license agreement.
   In turn, the license can be exclusive and simple (non-exclusive). In the first case, the right holder loses the right to enter into license agreements with other persons; in the second case, he retains this right.

The transfer of intellectual property rights in most cases is carried out on the basis of an agreement, but there are exceptions. For example, the exclusive right to a work of literature can be inherited.

6. Protection of intellectual property.

Methods for protecting intellectual property and the procedure for implementing protection depend on the specifics of a particular IP object, therefore, they will be discussed in more detail in the relevant sections of the IP Library. However, there are general methods of protection, which are presented in the diagram.

7. Open licenses in intellectual property law

Russian law contains detailed provisions on a special kind of license agreements. A separate article on our website is devoted to this topic at the link just above.

useful links on the topic “Intellectual property and intellectual rights”:
1. Website of the World Intellectual Property Organization - http://www.wipo.int
2. Website Russian Academy intellectual property - http://rgiis.ru
3. Canada Patent Office -