LEGAL PROTECTION OF INTELLECTUAL PROPERTY IN EUROPEAN UNION (INDUSTRIAL PROPERTY RIGHTS)

Summarizing the results of our work, we can formulate the following conclusions:
We could:
systematized approaches to the definition of intellectual property;
gave the concept of intellectual property law;
gave the concept of protecting intellectual property rights.
The EU law is a special legal system, the norms of which regulate the social relations developing in the course of integration processes within the EU.
The subject of legal regulation of EU law consists of the following groups of legal relations:
1) legal relations that are formed in the process of interaction between EU member states, EU institutions, individuals and legal entities residing or located on the territory of the member states to realize the objectives of the domestic market, socio-economic and monetary integration;
2) legal relations that develop within the organizational structure of the EU, which can traditionally be called intraorganizational legal relations;
3) legal relations in the areas of the space of freedom, security and justice;
The heterogeneity of the internal structure of the EU legal system has been embodied in terms of Community law and EU law, as well as in terms of EU primary and derivative law formulated by Western European legal doctrine.
Ways of protection, common to protect personal non-property and exclusive rights, are:
- suppression of actions that violate the right or create a threat of its violation (including cases of invalidation of a patent or decision on state registration of means of individualization);
- publication of the court decision on the violation.
Special ways to protect exclusive intellectual rights are:
- the seizure of counterfeit material carrier and its destruction;
- the seizure and destruction of equipment, devices and materials, mainly used or intended to commit a violation of exclusive rights;
- damages;
- recovery of compensation instead of damages (in case of violation of copyright, related, patent rights, trademark rights and rights to the appellation of origin of goods).
Since intellectual rights are absolute rights, measures of protection of violated rights prevail in the methods of their protection (such measures are applied regardless of the violator’s guilt). Responsibility measures are only the recovery of compensation and damages for violation of exclusive rights (such measures are applied if there is guilt of the offender, except for violations committed in the course of business).
Ways to protect infringed intellectual rights are applied autonomously for each method of using the result of intellectual activity carried out by the violator without the consent of the copyright holder.
In this scientific work, we examined the peculiarities of intellectual property protection measures in EU countries and came to the following conclusion:
Intellectual property is a set of exclusive rights, both personal and proprietary, to the results of intellectual and, above all, creative activity, as well as to some other objects equal to them, a specific list of which is established by the legislation of the country concerned taking into account international obligations.
The main regulatory document in the European Union, which promotes the convergence of national standards and international standards in the field of advanced knowledge, know-how and technology, is Directive 2004/48 / EC of the European Parliament and the European Council. According to this document, equal rights of protection are created for the acquirer in the EU internal market and thus also obliges the EU member states to take measures to stop attempts of intentional violation of intellectual property rights. In this connection, the EU member states have an equal set of measures, means and procedures for the protection of violated rights. Here it should be stipulated that sanctions are imposed against the country of the violator, which should be effective and fair, sanctions should not affect and impede trade, and also provide for the defendant to be protected from abuse by the court. The Preamble of the Directive stipulates the admissibility in some cases of application, in case of violation of the norms, of criminal law measures, but the text of the Directive itself does not mention such norms. The responsibility for the violation of the rights of the owner of intellectual property is spelled out very interestingly - these norms refer to the discretion of the national courts of the EU member states.
The European Commission, according to information received, may harden the sanctions for causing commercial loss to the owner of intellectual property. In this situation, the application of criminal liability throughout the European Union, deprivation of the rights to engage in commercial activities and the deprivation of state support for the offender, the closure of enterprises producing “counterfeit” products or products that violate copyright.
Another necessary means of protecting intellectual property rights at the present time is the patenting system - which plays an important role in the market of high technology products. In December 2011, EU members ratified the agreement on the creation of the Common European Patent System. In 2012, this agreement was approved by the European Parliament and in 2014, this agreement entered into force. Almost all countries took part in this project, with the exception of Italy and Spain because of their language discrimination: it was decided that patent documentation would be drawn up only in 3 official languages of the EU - French, German and English.
In our opinion, today, important unsolved problems remain:
Characterizing the IP sphere, one can build a picture:
1) imperfection of IP protection in the sphere of related, copyright and trademarks.
2) dissatisfaction with suppliers of intellectual property (USA, Germany).
3) dissatisfaction of consumers of intellectual property associated with limited access to the very results of IP and material costs of IP.
Currently, in many countries, besides licensing and patent protection of IP, there are other forms of protection:
1) “copyright” - the norm governing relations related to the reproduction of works, video, audio, etc. applied to works - indicates that the work is protected by copyright.
2) service mark and trademark - designations showing the individualization of goods, services rendered and works of individuals and legal entities.
3) the company name - after the registration procedures is terminated and at the same time is indefinite after the liquidation of the company.
Consider also several international agreements on intellectual property. Basically, we consider the acts used by the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO).
Basically, all conditions are set forth in the TRIPS Trade Related Aspects of Intellectual Property Rights (Agreement on Trade-Related Aspects of Intellectual Property Rights). This agreement virtually fully regulates the world trading system.
Article 7 of this agreement stipulates that "the realization and protection of IP rights are necessary to promote technical progress and the spread of technology, as well as to achieve the benefits of producers and users of technological knowledge, contributing to socio-economic well-being, and to achieve a balance of obligations and rights."
WTO members can use more extensive protection in their national laws, provided it is not inconsistent with agreement. This agreement has reference to the Berne Convention for the Protection of Literary and Artistic Works, the International (Rome) Convention for the Protection of Performers, the Paris Convention for the Protection of Industrial Property, the Treaty on Intellectual Property in respect of integrated circuits.
Characteristic of TRIPS is the obligation to provide foreign nationals from WTO member countries with a national regime in the field of intellectual property rights, as well as the most favored regime in order to prevent discriminatory actions and defamatory provisions against them.
In accordance with paragraph 2 of article. 9 TRIPS "copyright protection should apply to specific implementations, but not to working methods, procedures, ideas, or concepts of mathematics." Special articles are devoted to computer programs and information.
Compared with the Paris Convention, TRIPS contains many innovations. A trademark is equated to a service mark, a list of cases is given in which a refusal in the registration actions of a trademark is possible (for example, if the mark is not perceived visually). There are cases when it is possible to extend the term of registration of a trademark, and an unlimited number of times (the extension is carried out for at least seven years). TRIPS prohibits unreasonable restrictions on the use of a trademark in trade, allows the transfer of a mark with or without an organization (enterprise).
TRIPS Article 25 lays down rules for the use and granting of patents. Patents are granted for any inventions, regardless of whether they are a product or method in all areas of technology, provided that they contain an inventive step, are new and are industrially applicable. The agreement clarifies the rights of the patent owner. If the subject of a patent is a product, the owner has the right to prevent third parties, without the consent of the copyright holder, from using, creating, selling the said product. If the object of the patent is “method”, then the owner has the right to prevent third parties from using the method, without the consent of the copyright holder. Owners can inherit their rights and enter into contracts.
In licensing practice, everything is left to the discretion of national law, however there are exceptions that limit competition and may have an adverse effect on trade and prevent the spread and transfer of technology. The agreement does not prevent WTO members from taking legislative measures.
However, TRIPS obliges WTO members to provide in their national legislation a system for protecting the rights of foreign and national owners, up to and including criminal penalties for deliberate actions related to trademark fraud and copyright infringement on a commercial scale. The following punishments are foreseen: arrest, confiscation, imprisonment, destruction of counterfeit goods, etc.
The TRIPS Agreement, Article 7 - “Objectives” clarifies that “the enforcement of rights and the protection of IP should comprehensively contribute to technical progress, the spread and transfer of technology to the mutual benefit of users and manufacturers, contributing to socio-economic well-being ...” The documents discussed above are also aimed at achieving the same goals.
In the Agreement, Article 41 - “General Obligations” requires the member states to adopt legislation that will ensure full compliance with IP rights and allow them to resort to effective action against any violation of rights. The same is written in the adopted EU directives.
Great attention in the Agreement is paid to counterfeit products, in Article 51 - “Suspension of release of goods into circulation by the customs authorities” and 46 - “Other measures of judicial protection”. In Art. 46 we are talking about the removal of counterfeit from the trading network and the destruction of them without compensation. In Art. 51 deals with the granting of a number of rights to the customs authorities to stop admission to the country and the release from its territory of goods produced in violation of copyright. (or in case of unlawful use of a trademark) The same requirements are set forth in the EU anti-counterfeiting documents.
Sanctions are provided for in the Agreement against violators of rights, in section 5 - “Criminal procedures”. Article 61 states “monetary fines sufficient to serve as a means of restraint, commensurate with the degree of punishment applied in connection with other crimes of a corresponding gravity” and “criminal procedures that apply, at least in cases of intentional misuse of trademark infringement and copyright committed on a commercial scale. ” Tougher sanctions against violators of rights can be seen in the documents of the European Union, which state that fines should be sufficient to prevent violation of rights, and in certain cases criminal measures can also be applied.
The European Union, on the one hand, forming an equal system of protection of IP rights for all the participants of the association, while using the goal of increasing the international competitiveness of member entrepreneurs and strengthening the unified competitive environment, while fully seeking to use the experience gained in the world in this area, the other is that the European Union’s application of this experience allows it to quickly increase the level of IP protection, as well as accelerate its scientific and technical potential and shorten the way to achieve its goal.


Купить