The IP court, unfair competition and abuse of rights


Valentina Orlova

In the brief period in which they have been at work, the judges of the Court for Intellectual Property Rights have faced many issues for which current Russian legislation does not provide direct solutions.

IP case law shows that the most pressing issues at present are those that relate to the actions of parties to different relationships being classified as unfair competition or abuses of rights. Several factors combine to make these problems so keenly felt, one being that there is insufficient legal regulation of competitive relationships in which an IP right is an element.

The Federal Antimonopoly Service has prepared a proposal to expand the list of forms of unfair competition. This will help to combat it more effectively because it will be possible to apply national legislation directly, avoiding the need for recourse to the provisions of Article 10 bis of the Paris Convention for the Protection of IP.

Article 15(4) of the Russian Constitution allows this provision of the convention to be applied directly in Russia. At present, the state commercial (arbitration) courts, including the IP court, apply the provisions of this international treaty when they resolve disputes, taking into account the fact that the article cited above contains a general prohibition on unfair competition. An event of unfair competition is understood to be any competitive action which is inconsistent with fair industrial and trading practices.

IP court, Federal Antimonopoly Service, unfair competition