Приложение 5. Internet and Russian Legal Practice Victor Naumov

St.Petersburg Institute for Informatics, Russian Academy of Science nau@mail.iias.spb.su, http://www russianlaw. net

Objects of intellectual property in Internet are vulnerable and are under constant threat of an unauthorized use. It is most vividly demonstrated by the cases, having been adjudicated in last two years in Russia: the current legal practice, as far as the disputes over the use of Internet are concerned, is fully concentrated on the intellectual property issues – the copyright infringement (the author's rights to the works of literature, music and the computer programs), and an infringement of exclusive rights to the means of identity (trademarks, marks of service and the company names). In Russia the rights to the means of individualization are violated by the domain name registration and usage.

The domain name in Internet contains a certain kind of information, permitting Internet user to access an information resource. Choosing a domain name for the domain registration[59] completely on the discretion of the resource's owner; this choice is secondary, because the protocol TCP/IP and the addressing system of Internet provide a digital address to any information Internet resource which then receives the domain name according to the owners' choice. Upon registration of certain domain name an application for identical domain name will be automatically rejected: the hierarchical system of domain name in Internet will not let simultaneous existence of identical domain names.

Therefore, the domain name is, as a matter of fact, a certain kind of means of brand indentity in wide sense, which gives customers and users an opportunity to find in a virtual area an information related to well-known trademarks and company names.

The possibility of an independent choice of domain name breeds an illegal phenomenon – cybersquatting, which means the registration of the domain names identical or similar to the brand identity and its further use in bad faith ei

ther for one's own commercial purposes, or make to the owner of the trademark/ company name an offer to sell.

Art.138 of the Civil Code of the Russian Federation (RF) contains the recognition of a company's copyright on intellectual activities results and on means of identity, similar to them, like trademarks, service marks, company name. The basic rules of Russian legislation, regulating the mentioned institutes, are concentrated in the Civil Code, the Law of the Russian Federation on Trademarks, Service Marks and Appellations of Origin, the Federal Act «On Competition and Limitation of Monopoly at a Commodity Market».

According to art.54 of the Civil Code («The Title and the Principal Location of a Legal Entity») a legal entity has its own name, containing an indication of its legal form, and a company, which has registered its name according to the established procedure receives an exclusive right to use it, while an entity that misappropriated the same name and committed its unauthorized use, must stop this unlawful activity and cure the damage. Besides that, par. 8 of an old Regulation «About the company name» (adopted by the USSR Central Committee and the USSR SPC Decree on August 17, 1927) which is still in power, states that «the right on the company name consists in exclusive right to use it in deals, signboards, announcement, advertisement, letterheads, invoices, manufactured goods, goods' package ...etc.»

The legal protection for another kind of identity tool – a trademark is provided by the «Law of the Russian Federation on Trademarks, Service Marks and Appellations of Origin» (Trademark Law), dated 23.09.92 N3520-1, which states the following:

«A trademark and a service mark (hereinafter – a trademark) – are the designations which are able to distinguish the goods and services of one entity (legal or physical) from similar goods and services (hereinafter – the goods), offered by other legal or physical entities» (art.1).

«1. The legal protection of a trademark in the Russian Federation is provided through its public registration in the order, established by the present law or in pursuance of an international treaty which the Russian Federation is a party

«2. The right to a trademark is protected by the law» (art.2)

«1. The owner of a trademark has an exclusive right to make use it, to dispose it and to prohibit its use by the others.

Nobody can use a trademark, protected in the Russian Federation by the law without its owner's permission.

2. It is recognized as an infringement of the trademark owner's rights when one commits unauthorized manufacturing, application, import, offer, sale, and other kind of putting into business circulation or storage, with mentioned above purposes of a trademark or goods, identified by this trademark or by designation similar to the latter to the degree of confusion with relation to the similar goods» (art. 4 An exclusive right to a trademark).

In disputes about an authorized use of the domain name the claims based on a trademark ownership are less arguable than those based on the rights to company

name, because a company name consists of two elements – an indication of the legal form of business and the name itself, but Russian judicial practice, as well as the legislation, lacks a direct statement of what role the legal form plays in the identity means and whether the legal protection is granted to the name only or when both the legal form and properly the name are misused. Therefore, companies with the same name but with different legal forms are registered to the present time by the system of the registration offices, though art.6bis of Paris Convention on the industrial property protection puts forward such a category as «essential part of a mark» and points on such a kind of violation as a use «with a degree of their confusion».

Besides the legislation regulating the institute of identity means in Russia, there is in force the Act «On competition and limitation of monopoly at a commodity market», of 22.03.1991 N948-1 (revised by the Acts of RF of 24.06.1992 N3119-1, 15.07.1992 N3310-1; by the Federal Acts, of 25.05.1995 N83-FA,