It is difficult to find a person who has not heard about copyrights - large corporations often initiate lengthy lawsuits, demanding compensation from violators for the use of their trademarks by violators; freelancers providing design or content development services for commercial sites are carefully vigilant to ensure that their rejected works were not published without payment. But the object of intellectual property rights is not only copyright. “What else?” - you ask. Let's talk about it in today's article!

Types of intellectual property: how to figure it out?

Due to the low legal literacy of the population, often incorrect stereotypes of understanding copyright and other results of intellectual activity have become entrenched in society.

A typical situation is that a company used part of a song by a famous artist during a public corporate event, and on the second day lawyers from the copyright holders showed up at the office. Then attempts begin to reach an agreement out of court; in the worst cases, litigation begins that lasts for several years.

So, let's figure out what belongs to the main objects of intellectual property (IPR), and what can be attributed to mythological folk tales.

1. Copyright. Vasya created text for the commercial website of a production company metal-plastic products. Vasya is the copyright holder and author of his article. The company, along with the text, bought from Vasya the exclusive right to use the result of his work (it can use it in any form), but Vasya remained a full-fledged author.
2. Rights related to copyright. Petya wrote a song, found a producer and quickly reached the TOP of radio charts with his hit. Petya's song began to be interpreted in folk art- at corporate events, weddings, on regional television, in karaoke clubs they began to make phonograms from the song. Who are all these people? Legal holders of rights related to copyright, if they have entered into a license agreement with Petya. Otherwise, they are malicious violators of the provisions of the Civil Code of the Russian Federation on copyright.
3. Patent Law. Nikolai came up with additional safety equipment for car drivers. Nikolai registered his invention with Rospatent. Accordingly, he is the owner of the patent right. If a car company decides to use a method of ensuring auto safety in its industry, its representatives must first enter into an agreement with Nikolai.
4. Non-traditional intellectual property. Such objects include all non-standard objects - a discovery, a selection achievement, the topology of integrated circuits, an innovation proposal. The author of such developments can only be an individual; companies can become copyright holders if they have concluded an appropriate agreement with the author. Otherwise, everything works the same as with other intellectual property rights - in case of unauthorized use of developments, the interests of the copyright holder are defended through the courts.
5. Means of individualization of legal entities, goods, services and enterprises. Konstantin created his own company, which is engaged in the production and supply of chocolate products. To highlight his products, Konstantin uses a brand name and trademark. These are means of individualization of the Constantine Company (commercial designations, names of places of origin of goods, service marks should also be included here).

Objects of intellectual property are copyright materials, developments, achievements that were created and registered in accordance with the norms of the Civil Code of the Russian Federation. Don't underestimate them! Each author has the right to go to court and demand compensation from the violator. And rest assured that we will not be talking about 5,000 rubles, but about much larger amounts.

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

Right intellectual property

Main institutions

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

Special rights

Database Topologies of integrated circuits Selection achievement

Concept

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

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

Laws on unfair competition and trade secrets are often considered “intellectual property,” although they do not constitute exclusive rights by design.

In jurisprudence, the phrase “intellectual property” is a single term; its constituent words are not subject to interpretation separately. In particular, “intellectual property” is an independent legal regime (more precisely, a group of regimes), and does not, contrary to popular belief, represent a special case of property rights.

Types of intellectual rights

Copyright

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

Related rights

A group of exclusive rights created in the second half of the 20th and early 21st centuries, modeled on copyright, for activities that are not creative enough to warrant copyright. The content of related rights differs significantly in different countries. The most common examples are the exclusive right of performing musicians, producers of phonograms, and broadcasting organizations.

Patent Law

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

Rights to means of individualization

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

Right to trade secrets (Know-how)

Production secrets (Know-how) are information of any nature (original technologies, knowledge, skills, etc.) that are protected by a trade secret regime and can be the subject of purchase and sale or used to achieve a competitive advantage over other entities entrepreneurial activity.

Protection of new plant varieties

A system of legal rules that regulates the copyright of new plant varieties by plant breeders, through the granting of patents.

Unfair competition

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

• all acts likely in any way to cause confusion with respect to the establishment, products or industrial or commercial activities of a competitor;
• false statements in business that are likely to discredit the enterprise, products or industry or trading activities competitor;
• indications or statements, the use of which in the conduct of business is likely to mislead the public as to the nature, method of manufacture, properties, suitability for use or quantity of the goods.

Ideological justifications for intellectual property

The reasons why states enact national laws and become signatories to regional or international treaties (or both) governing intellectual property rights are usually motivated by:

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

Types of intellectual property rights violations

To the violation various types intellectual property rights include:

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

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

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

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

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

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

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

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

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

International protection of intellectual property

The development and protection of intellectual property around the world is carried out by the World Intellectual Property Organization (WIPO), founded in 1967, and since 1974 it has been a specialized UN agency for creativity and intellectual property.

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

In 2000, WIPO established the annual International Intellectual Property Day, aimed at raising awareness of the role of intellectual property in development.

Public Purposes of Intellectual Property

Finance

Intellectual property rights allow intellectual property owners to benefit from the property they create by providing financial incentives for creating and investing in intellectual property and, in patent cases, paying for research and development.

The economic growth

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

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

Economists have also shown that IP can be a barrier to innovation if innovation is disruptive. IP creates economic inefficiency in the case of a monopoly. An obstacle to directing resources to innovation can arise when monopoly profits are less than the improvement in social welfare. This situation can be seen as a market failure as well as an appropriability issue.

Morality

According to Article 27 of the Universal Declaration of Human Rights, “Everyone has the right to the protection of his moral and material interests resulting from scientific, literary or artistic works of which he is the author.” Although the relationship between intellectual property and human rights is complex, there are arguments in favor of intellectual property.

Arguments for the morality of intellectual property:

Writer Ayn Rand argues that protecting intellectual property is a moral issue. She is convinced that the human mind itself is the source of wealth and survival, and that all property created by it is intellectual property. Violating intellectual property is therefore no different morally from violating other property rights, which jeopardizes the very process of survival and is therefore an immoral act.

Russian legislation in the field of intellectual property

In Russia, on January 1, 2008, Part 4 of the Civil Code came into force (in accordance with Federal Law dated December 18, 2006 No. 231-FZ), hereinafter referred to as the Civil Code of the Russian Federation, Section VII “Rights to the results of intellectual activity and means of individualization,” which defines intellectual property as a list of results of intellectual activity and means of individualization that are granted legal protection. Thus, according to the Civil Code of the Russian Federation, intellectual property is

The Garant company held the next All-Russian online seminar, which was dedicated to the taxation of intellectual property objects (IPO). 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 spoke before the audience. 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 explained how serious these risks are and discussed some ways to reduce them, using the latest clarifications of the Russian Ministry of Finance and the Federal Tax Service of Russia, as well as specific examples from judicial practice.

Civil law basics

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

Let's look at some basic concepts 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); the third - means of individualization of legal entities, goods, works, services (trademarks and service marks, brand names, commercial designations); the fourth - other objects of intellectual property (breeding achievements, know-how, etc.). A very important civil law issue is related to the method of disposing of rights to intellectual property. As practice shows, any tax problems in the vast majority of cases arise precisely when the taxpayer tries to dispose of these rights. With the adoption of Part 4, standardized forms of disposal of intellectual property rights were established, which apply to all its objects. In fact, these are 2 main forms: an agreement for the alienation of an exclusive right and a license agreement.

An agreement for 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 IP in a certain way, while remaining the owner of this object. A license can be either exclusive (the copyright holder has the right to transfer rights to the intellectual property to other persons) or non-exclusive (i.e. the copyright holder can enter into licensing agreements an unlimited number of times and with other persons). Moreover, there is no need to confuse the relationship in terms of an agreement for the alienation of an exclusive right and a license agreement for the transfer of an exclusive license, since in the first case we are deprived of the right to own IP, and in the second we remain the owner of such rights.

Let's not forget very important formal points. An agreement for the alienation of an exclusive right, a license agreement, or a sublicense agreement that is not concluded in writing is void. Such contracts often require state registration in accordance with civil law. Without it they are invalid. The license agreement must 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 affixing this mark on packaging or mentioning it in product advertising, etc.

Tax disputes related to trademark rights

There is a growing number of legal proceedings where auditors make claims regarding the costs of acquiring intellectual property. Moreover greatest number Tax disputes today involve trademark rights.

Gone are the days when a fee for using a trademark or a fee for using a patent (royalty) was something exotic for a tax inspector. Today the situation is exactly the opposite. Tax officials have a fairly strong opinion that, for example, a fee for a trademark is actually a way of redistribution cash flows within companies of the same group. That is why the topic of tax disputes related to intellectual property is very relevant. This means you need to always be ready for a discussion with 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 tax authorities for some reason of these amounts from tax expenses leads to disastrous consequences for the taxpayer.

Please note that agreements related to the transfer of rights to a trademark (license or alienation of exclusive rights) are subject to mandatory registration with Rospatent. If such registration is absent, then the tax authorities will consider the costs associated with the acquisition of the right to a trademark to be undocumented and not meeting the criteria of Article 252.

Regarding this group of disputes, it must be said that in 2008, judicial practice in most cases was in favor of the taxpayer. The judges’ conclusion: the civil law defects of the transaction do not in any way affect its tax consequences. For example, if the agreement is not registered with Rospatent, but in fact the rights to the trademark were transferred and payments for it were actually transferred, then these expenses cannot be disputed. This position was also expressed by the Supreme Arbitration Court of the Russian Federation, which has repeatedly emphasized that violations of other, non-tax sectors should not affect tax consequences, except in cases expressly provided for by the Tax Code. However, in order to save your time and effort, you need to register, especially since this procedure is not complicated. Those organizations in which the verification has already begun, but 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, reference to the fact that steps aimed at state registration of the agreement have already been taken by the taxpayer may eliminate additional claims from inspectors.

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

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

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

What first attracts the attention of inspectors? Of course, there is a huge difference in 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 in fact the rights to the trademarks are used by the manufacturer. At the same time, inspectors refer to the principle of exhaustion of rights to a trademark, pointing out that goods marked with trademarks are introduced into civil circulation by the manufacturer at the stage of selling all manufactured products to the distributor. To further distribute these products, the distributor simply does not need trademark rights. Thus, the distributor, in terms of the difference in rates under license and sublicense 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, tax authority concluded that the costs of paying royalties are not economically justified and are aimed only at understating the income tax and VAT base, which does not comply with the provisions of Article 252 of the Tax Code.

In this litigation, the taxpayer lost the income tax case, suffering significant financial losses. Tax officials 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 legality of accounting for VAT deductions in the Supreme Arbitration Court of the Russian Federation. Thus, the VAT risk can now be assessed as insignificant, and the income tax risk is high.

O.A. Moskvitin,
Legal consulting service GARANT,
Deputy Head of User Support Department

As a rule, sellers of software discs do not enter into a separate written license (sublicense) agreement with their customers. This entails tax risks for sellers, which are mentioned in a number of letters from the Russian Ministry of Finance (dated 02/21/2008 N 03-07-08/36, dated 02/19/2008 N 03-07-11/68). How justified is the position of the financial department? According to Article 1286, the transfer of the right to use a computer program is carried out by concluding a license agreement. At the moment of transfer of the disk, no contract is concluded, and therefore no transfer of rights occurs. Moreover, the text of the "wrapping" license usually binds the user and the creator of the program. But the disc dealer very often is not the creator of the program (the first copyright holder). In this regard, it is difficult to talk about concluding 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 in subparagraph 26 of paragraph 2 of Article 149 of the Tax Code, the software seller should develop a sublicense agreement and conclude it with its customers. The sublicense agreement must provide for the transfer to the user not only of the right to use the program “for its intended purpose” (Article 1280 of the Civil Code of the Russian Federation), but also some other powers.

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

Yes, we do. Since this is explicitly stated in . Import of goods into the territory Russian Federation is a way to use trademark rights. Therefore, in order to import goods marked with a trademark into Russia, it is necessary to acquire the appropriate rights to trademarks. This position was supported by the Constitutional Court of the Russian Federation in Resolution 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 complying with 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. Let's assume that a company has a licensing agreement under which tax authorities are trying to challenge the economic justification of payments. The taxpayer can refer to the fact that he uses the rights to the trademark when advertising the relevant goods, therefore payments for its use are economically justified.

On the other hand, we see that many taxpayers actually advertise other people's trademarks (for example, official dealers). However, they do not have any licensing agreements with the copyright holder. In addition to the fact that there are civil legal risks associated with the illegal use of someone else’s mark, one must also remember about tax risks, since there is a gratuitous use of property rights to a trademark by the taxpayer. As we know, receiving rights free of charge 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 expenses for the acquisition (creation) of intellectual property.

If an object of intellectual property is an intangible asset, then its cost is repaid evenly by calculating depreciation over its useful life. The exception is subclause 8 of clause 2 of Article 256 of the Tax Code. In the reporting (tax) period in which they arise, based on the terms of transactions (using the accrual method), expenses are recognized:

It would seem quite simple rules, however, judicial practice indicates the opposite. For example, the taxpayer is given a non-exclusive right to use the software, but for a long period. Tax officials insist that in this case, the payments that the payer made for this program should be taken into account evenly over the entire long period of use of 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 transferred, it does not matter whether 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 an intangible asset or not. So, for example, the taxpayer acquired a depository business, including some OIS: customer databases, for certain commercial procedures, etc. All these expenses were written off by the taxpayer at a time. The tax authorities concluded that the intangible asset was actually acquired here, since the rights were exclusive. The arbitrators supported the payer, considering the fact of exclusivity of rights unproven. According to the judges, the information transmitted was open, which means it cannot be regarded as intangible material.

VAT benefit when transferring rights to intellectual property

Transfer of rights to intellectual property is subject to VAT. At the same time, from January 1, 2008, VAT benefits apply to the transfer of exclusive rights to inventions, utility models, industrial designs, computer programs, databases, 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 Russian Ministry of Finance 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 IP under sublicense agreements and under exclusive license agreements. Now about the letters, the explanations in which are not beneficial for the taxpayer. The Russian Ministry of Finance concludes that the benefit does not apply to those cases when the transfer of rights is carried out on the basis not of a license agreement, but of a purchase and sale agreement, that is, when the programs have already been introduced into civil circulation and in the future we are only talking about the sale of a copy of the program.

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

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

Copyright agreement and unified social tax

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

I would like to immediately note 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 is 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 includes property copyrights), then payments should not be subject to UST. The question arises: are these payments subject to unified social tax?

Let's consider one of possible 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. In this case, the logic is as follows: Chapter 24 refers to an author’s agreement as any agreement related to the circulation of copyrights, one of the parties to which is the author, including agreements in which a third party acts on behalf of the author. This position seems extremely controversial, since it is not clear where the Ministry of Finance of Russia draws such a conclusion, because Chapter 24 of the Tax Code simply mentions an author’s agreement, the concept of which disappeared from the legislation with the adoption of Part 4 of the Civil Code.

As we see, having made changes to civil legislation, the legislator did not include them in the main tax document. Hence the problem. Judicial practice no on this yet. Therefore, it is quite difficult to predict how a dispute with inspectors will end if an organization decides not to levy payments under copyright agreements under the unified social tax. 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 (can be inherited). Therefore, payments can be intended not only to the author himself, but also to his heirs. The official position of the Russian Ministry of Finance is this: remuneration to the author’s heirs is not a payment under the author’s agreement in the sense of Chapter 24 of the Tax Code and is not subject to unified social tax and pension contributions.

Listeners ask...

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

As part of 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 costs of creating the program, including payment for the contractor’s work, be justified and reflected to the customer? 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 rights. After all, intangible assets are always an exclusive right. The question itself states that the program remains on the balance sheet of the contractor, that is, he is the copyright holder. Accordingly, the customer can record the costs associated with the acquisition of the program as a lump sum as part of other costs associated with production and sales.

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 the software are not transferred, but they are transferred within the framework of a license agreement. Of course, you can try to apply the benefit and argue with the inspectors, citing the fact that if the right to intellectual property is actually transferred within the framework of a work 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, which directly states that rights to a trademark arise only from the moment of its state registration. Therefore, if a trademark is not registered anywhere, then it does not exist as such at all. This must be understood absolutely precisely. You can use some kind of logo, you can put it anywhere, on any products, you can advertise it. But no legal protection will be provided for this trademark in Russia. Any person can use the same logo, and it is impossible to influence this situation without appropriate 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 validity of advertising expenses for an unregistered trademark, it is likely that problems with tax authorities will arise if you talk about advertising expenses for 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 will most likely be considered economically justified.

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

This question is very interesting, since in practice, often a lot of time passes between the moment of signing an agreement and the moment of its registration, and payments under this agreement are already in progress. 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 include a clause in the contract stating that it applies to relations between the parties that arose from the moment the production of goods marked with the trademark began, or, for example, from the moment payments began. If there is currently no such clause, then nothing prevents you from introducing this clause now by drawing up the corresponding additional 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 UST taxation for taxpayers-organizations includes, among other things, remunerations under copyright agreements.
In Chapter 24 of the Tax Code, an author's agreement is understood as 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 unified social tax is determined taking into account the expenses provided for in article 221, and the unified social tax is not paid from the amounts of remuneration under such agreements in the part subject to credit to the Social Fund insurance of the Russian Federation (clause 3 of article 238 of the Tax Code of the Russian Federation).
In the case of payment, for example, of remuneration to the heir of property 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.

The Internet has very quickly become an integral part of the life of almost every person. It is not surprising that the rules governing intellectual property rights sometimes fail to keep up 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 understanding of what protected intellectual property objects are and how they are protected.

Concept and objects of intellectual property

World Intellectual Property Organization (WIPO) was established on July 14, 1967. The Convention establishing it, signed in Stockholm, defines intellectual property quite broadly. She considers the following 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 copyright);
• inventions, utility models, industrial designs, trademarks, service marks, trade names, commercial names and designations (protected by patent law and industrial property law);

In the legislation 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 rights that relate to intellectual property, it plays an important role in education legal system, which 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. directly the results of intellectual activity;
2. means of individualization equated to them;

Objects of intellectual property and their characteristics

Article 1225 of the Civil Code interprets intellectual property as the results of intellectual activity and means of individualization that are protected by law. Characteristic features of intellectual property:

• Intellectual property is intangible. In this way it differs radically from the classical understanding of property. Owning any thing, you have the right to dispose of it at your own discretion. But it is impossible to use the same item with someone else at the same time. Possession of intellectual property makes it possible at the same moment 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;
• intellectual property is absolute. This implies that one holder 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. Moreover, 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 tangible objects. By purchasing a book, you become the owner of only one copy out of a circulation of many thousands, 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 that belongs to you - sell, donate, constantly re-read. But any interference with the text of the work, its copying for the purpose of distribution will be unlawful;
• in Russia, an object must be explicitly named as intellectual property in the law. Not every result of intellectual activity or means of individualization falls under the definition of intellectual property. For example, a domain name individualizes a website on the Internet and can serve as a means of individualizing the person who created this resource, but 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 rights to intellectual property

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. Cases where these rights arise are listed in the legislation.

Exclusive right.

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

The validity of the exclusive right is limited to the periods established by law.

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 also rights not listed above. These include the right of access and the right of succession.

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

What are the different types 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 composition and presentation. The concept of a literary work, in addition to artistic works, also includes scientific, educational and journalistic works. The form of the work does not have to be written; it can be an oral presentation, including in front of any audience. The carriers of a literary work can be paper, a compact disc, a tape recording, or a gramophone record.
• letters, diaries, personal notes. Protected intellectual property includes letters, diaries, personal notes and other similar documents of an individual nature. Moreover, from the point of view of the law, they are all included in the group 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 is equally committed to protecting letters as famous writer both 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 the addressee when it comes to letters.
• interviews, discussions, letters to the editor. An interview is a conversation during which a journalist, reporter, or presenter asks questions to an invited person whose opinion on the issues under discussion is of public importance. Subsequently, a recording of this meeting is published in print or online publications or broadcast on television and radio.

  The object of interviewing is most often a person whose personality is of increased interest to a certain audience. In order for his characteristic features to be revealed during the conversation, his 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 competently built, such an interview has every chance of becoming the object of intellectual property protection.

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

• translations. 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 translating into another language requires the translator, first of all, to preserve the style of the original work, and he must also select language means that most accurately correspond to those that the author used when creating his text. But when the translator is faced with the task of not conveying all the artistic colors of the source, but only literal translation, the so-called interlinear, 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 complex equipment. It is no secret that the cost of production of software significantly exceeds the devices for their use - computers and smartphones. By Russian legislation, computer programs and databases are equated to literary and scientific works, but 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 in the operation of computers and similar devices. This also includes materials received during its development, as well as the video and audio that is played while using the application. But the protection of programs cannot be considered absolute: they are prohibited from being copied without the permission of the authors, but the algorithms underlying their work are not protected in any way.
• dramatic works. Objects of intellectual property that are subject to copyright protection also include dramatic works, regardless of their genres, methods of execution on stage and forms of expression. From the point of view of the law, dramatic works represent a special type, which has specific artistic means and a method of demonstration. For example, the text of a drama is dominated by dialogues and monologues of the characters, and such works are performed primarily in front of an audience on stage.
• musical works. When artistic images are conveyed 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 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 that has a unique intonation. Works of musical art are perceived by listeners either directly when performed by musicians, or using a variety of sound media - records, cassettes, CDs. Works performed in front of the general public are protected as intellectual property.
• scenarios. Also included in the list of objects of intellectual property protection are scripts that serve as the basis for productions of films, ballets, and festive public performances. They can be different and meet the requirements of exactly those genres of art for which they are intended. Thus, the script of the film is completely different from the script for 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 widespread group today consists of audiovisual works, which include many of the most 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 specific genres and methods of performance. What they have in common is that they are all designed for the simultaneous perception of visual and auditory images; successive images are inextricably linked with the accompanying cues and music. A large number of authors are simultaneously working on the creation of such works, the contribution of each of them is necessary to create a complete work of art. However, this does not exclude the possibility that, for example, elements of one film - costumes, scenery, shots - may act as separate objects of intellectual property protection.
• works of fine art and decorative art. There are so many forms and technical methods for implementing creative ideas that everything can be fully described in legislation. possible types works visual arts, which may be subject to intellectual property protection, is not possible.

  Of course, this includes masterpieces of painting, graphics, sculpture, monuments, design developments, comics and many other ways of expressing artistic thought. They are united by one common feature: works of fine art cannot exist in isolation from the material media with which they are brought to life. Thus, masterpieces of painting cannot be separated from the canvas on which they are painted, and statues of Italian Renaissance masters cannot be separated from the marble from which they are carved. Common for works of this type is their existence in a single copy, and therefore in their relation there is a need to distinguish between the ownership of a specific sculpture and the copyright of 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 exclusively 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 that are allowed to be copied without restrictions if the terms of protection have long expired.
• works of decorative and applied art and design. Distinctive features works of decorative and applied art can be called their intended use in everyday life and at the same time highly artistic execution. In other words, they meet at the same time the requirements of utilitarianism and the cultivation of artistic taste. In some cases, such items may exist in a single copy, but most often they are produced en masse. Before starting production of a work of decorative and applied art, the manufacturing enterprise must have the sketch approved by a specially created artistic council. From this moment 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, or substance for a completely different purpose. In particular, devices are represented by machines, instruments, mechanisms, and 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 is that they are purely utilitarian in nature and are not 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 group of people, has the attribute of novelty and the possibility of use in industry.
• industrial model. An industrial design is understood as a variant of the artistic and constructive solution of a product, which is the standard of its appearance. What it has in common with invention is that it, being the result of mental labor, 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 implementing design ideas.

3) Means of individualization.

• brand names. The word “firm” in Russian business language serves to designate an entrepreneurial structure, which allows it to be distinguished from many similar entities. The company name must include an indication of the organizational and legal form of the enterprise (LLC, OJSC, CJSC, PJSC), the direction of activity (industrial, scientific, commercial). The law prohibits the use of words in a company name that may mislead consumers.
• trademark. This object of intellectual property serves to designate the ownership of goods produced by different companies to one or another manufacturer. A trademark is a symbol placed directly on a product or its packaging, and serves to identify the product of a particular manufacturer among similar ones.

  Trademarks, depending on the form chosen by the owner company, can be figurative, verbal, combined, three-dimensional and others.

  Trademarks expressed in words have many variations. The most common options are the use of surnames famous people, characters in works, heroes of myths and fairy tales, names of plants, animals and birds, planets. Often there are references to words from 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 to be the visual design of a verbal trademark (logo).

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

  Combined trademarks combine all of the above characteristics. The most simple example This type of trademark can be called labels on bottles or candy wrappers. They record the verbal and visual components of the trademark, including the corporate color palette.

  In addition to the above, the law allows you to register trademarks in the form of sound combinations, aromas and light signals. Most often, this is initiated by foreign manufacturers.

• 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 a similar nature. In order for a service mark to be officially recognized as such, it must be new and have been registered. In Russia, the requirements for trademarks and service marks are identical.
• names of places of origin of the goods. The appellation of origin of a product implies the use of the name of a country, city, or town in the designation of a product to identify it in connection with unique properties, which are caused by peculiarities of geographical origin, human factor or a combination thereof. Although at first glance this piece of intellectual property is similar to a trademark and service mark, it has distinctive features. This is a mandatory indication of the origin of the product from a specific state, region or area. Options can be the name of the country (Russian), city (Volgogradsky), village (Sebryakovsky). Both officially recognized names (St. Petersburg) and slang names (Pitersky) can be used; both full (St. Petersburg) and abbreviated (Petersburg), both used today (Petersburg) and consigned to history (Leningrad).

Non-traditional intellectual property

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

Non-traditional objects include:

1) topology of integrated circuits

The topology of an integrated circuit is the spatial-geometric arrangement of a set of elements and connections between them, imprinted on a material medium, namely on a crystal. This intellectual property 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 human actions aimed at obtaining plants and animals with a predominance of the necessary characteristics. In this case, the protected objects of intellectual property are achievements in solving a certain practical problem, namely a new variety of plant or breed of animal.

3) know-how

Trade secret (know-how) is technical, organizational or commercial information that is protected from unauthorized use by third parties. The mandatory conditions for classifying information as know-how are the following:

1. it has some present or future commercial value;
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 legal norms relating to the protection, transfer and use of trade 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 become 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 it.

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

How the exclusive right to intellectual property is 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. Alienation of the exclusive right to a result of intellectual activity or the granting of the right to use such a result under an agreement is carried out through 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 (the copyright holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity... in full to the other party (the acquirer).”

In accordance with paragraph 1 of Article 1235 of the Civil Code, “under a license agreement, one party is the holder of the exclusive right to the result of intellectual activity... (the licensor) grants or undertakes to grant the other party (the 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 in the license agreement.” Consequently, when signing an agreement for an intellectual property item, the cost depends on the scope of the rights to use it that 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 does not have proprietary intellectual rights to it reflected in the license agreement is called counterfeit.

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

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

Article 51 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which deals with special requirements for border measures, deals with goods that unlawfully use a trademark, as well as goods that have been produced in violation of exclusive rights. In this case, the first group includes all products and their packaging that are illegally marked with a trademark belonging to another person, or a mark that is very similar to the 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 are considered to be produced in violation of rights.

The sequence of actions when protecting intellectual property is provided for in Part 4 of the Civil Code. Ensuring the legal procedure for providing legal protection to intellectual property objects 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 customs control of goods containing intellectual property crossing the state border. Wherein distinctive feature the activities of customs in this direction is that it is not the intellectual property objects themselves that are subject to customs control, but the goods containing intellectual property objects transported across the border of the Russian Federation.

Within the limits of their powers, customs authorities may take measures aimed at suspending the release of goods, based on the application of the copyright 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 customs authorities does not include issues of ensuring the protection of rights to inventions, utility models, industrial designs, breeding achievements, topologies of integrated circuits, production secrets (know-how), commercial designations and unified technologies. But this provision should not be associated with the customs assessment of goods containing intellectual property. For goods that include any type of intellectual property protection object, the customs value is calculated taking into account the value of such intellectual property object.

How are rights to intellectual property protected?

According to 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 Intellectual Rights Court.

At first instance, it considers cases and disputes:

1. on the recognition as ineffective in whole or in part of regulatory legal acts of federal executive authorities, in particular, in the field of patent rights, rights to achievements of breeding activities, to the topology of integrated circuits, to production secrets (know-how), to means of individualization of legal entities, goods , works, services and enterprises, rights to use the results of intellectual activity as part of a unified technology;
2. on the need for legal protection or on 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 (except for objects of copyright and related rights, topologies of integrated circuits), including:
   1. on recognizing as unlawful the 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 a patent for secret inventions;
   2. on invalidating the decision of the Federal Antimonopoly Service to recognize as unfair competition actions related to the acquisition of an exclusive right to means of individualization;
   3. on identifying the owner of the patent;
   4. on invalidation of a patent, decision on granting legal protection to a trademark, appellation of origin of a product and on granting an exclusive right to such a name;
   5. on early termination of 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 Rights Court, regardless of who exactly the parties to the legal relationship are - organizations, individual entrepreneurs or ordinary citizens.

A special form of intellectual property protection is application of administrative procedure, which consists of consideration by the federal executive body for intellectual property and the ministry Agriculture(for achievements in the field of selection) issues related to the filing and consideration of applications for patents for inventions, utility models, industrial designs, selection achievements, trademarks, service marks 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, challenging the granting of protection to these results and means of legal protection or its termination. The decisions of these bodies come into force from the date of adoption. If necessary, they can be challenged in court in accordance with the procedure established by law.

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

The methods used to protect intellectual property 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 law;
• 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 a court decision on a 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.

General claims include:

1. on recognition of a 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 violation - to the person committing such actions or carrying out necessary preparations to them, as well as to other persons who have the power to suppress such actions;
3. on compensation for damages - to a person who illegally used the result of intellectual activity or a means of individualization without first concluding an agreement with the copyright holder (non-contractual use) or who committed a violation of his exclusive right in another form and caused him damage, including violating his right to receive remuneration;

The following are used as special methods of protecting intellectual property:

1. the ability to recover compensation instead of damages. Compensation is subject to recovery if the fact of an offense is proven. In this case, the copyright holder who applied for protection of the right is not required to prove the amount of damage 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. presenting a demand for the seizure of a material medium to its manufacturer, importer, custodian, carrier, seller, other distributor, or dishonest purchaser;
3. publication of a court decision on a violation, indicating the real copyright holder;
4. liquidation by 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 registration of a citizen as an individual entrepreneur;

It is possible to protect intellectual property using technical means, criminal and administrative measures.

However, the main point this process should be the registration of rights to an object of intellectual property. If you are not the owner of the 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 go too deep into this issue or want to get perfect result immediately, without making mistakes, you should trust the professionals. You can use the services of the Tsarskaya Privilege company, which has extensive legal experience. Specialists will monitor the entire registration process from the first days of application until obtaining rights to the intellectual property.