So in the majority of disputes about the domain names the court has recog nized the use of a company name, identical or similar to confusion, as a violation of an owner’s rights. Besides that, a registration of the domain name, similar to identity means itself is recognized as an infringement2.
A detailed review of the «network» legal practice is contained in: Naumov V. B.
Russian Internet: the first legal precedents // Arbitration disputes, N1(9), 2000, p.133; Naumov V. B. The protection of the intellectual property rights in Internet // Pat ents and licenses N4, 2001, p.20 27. The copies of every mentioned in article judicial acts are available at http://www.russianlaw.net/law/cases_list.htm.
For example, in the case related to the domain quelle.ru the arbitration court de cided in favor of the plaintiff and stated, with a reference to the «Law of the Russian Federation on Trademarks, Service Marks and Appellations of Origin» (Trademark Law) (art.4), that the first defendant had executed «another kind of putting into circu lation of a trademark onto a commodity market» by the registration of the domain quelle.ru on his name, and that served as a proof of the infringement of the plaintiff’s trademark rights.
An exception is presented by a precedent, concerning the domain kamaz.ru, when the plaintiff failed to substantiate, that the purpose of the registration and the use of the domain was a bad faith advantage in the business.
Though the number of national cases, relating to the copyright infringements1 in Internet, is far not high, it yet allows to recognize the types of violations and legal consequences well known abroad. In Russia there are precedents of an illegal use of materials placed at Internet for publication in books, and of an unauthorized placing at Internet of the materials, which become available outside the Web, and infringe ments by placing at Internet of music files, computer programs and databases.
A brief information about on the mentioned practice is given below in Table 2.
It is obvious that plaintiffs are yet unsuccessful in disputes over their copyright in fringements. It can be explained, in particular, by failure to execute an assignment of a copyright to an object, as created in their job tasks performance («Silmarill. Ltd» – «Softland.Ltd» case, «Businessman. Publishing Center. Co.» — «Public library. Co.», «Vector Info. Co.» Case), thus the plaintiffs did not succeed in presenting their pieces of work before the court as created as their job tasks performance2; the inherent defects of the contracts, which were the legal grounds for the transfer of exclusive copyrights to objects to the plaintiffs, and an objective difficulty of some objects attribution – first of all computer programs for their huge volumes of texts and codes are too complicated for comparing to decide whether they are similar or different.
Typical cases put the problem of a status of an evidence received from Internet:
— Each computer file has unique address, which consists of an indication of its name and the file’s directory;
— Being placed on a server a file differs from the information received by the user’s on line visual representation of a resource.
There is one more peculiarity in the information resource’s creation and plac ing at Internet, which should be taken into account. Usually, when placing the in formation, a person apply to the services of providers – companies, which offer the telematic services3. The reason is that a common person in commerce, who Main legislative acts regulating the use and the legal protection of copyright ob jects in Russia are the Act of RF «On Copyright and Allied Rights» of 09.07.N 5351 1 (amended by the Federal Act of 19.07.1995 N 110 FA) and the Act of RF «On Legal Protection of Computer Programs and Data Bases» of 23.09.1992 N3523 1.
According to art.14 of the Act «On Copyright and Allied Rights» an employer has an exclusive right to use an employee’s piece of work, created during the job performance, un less labor contract stipulates otherwise. The owner of copyright and allied rights is entitled by art.49 of the Act to require from an offender a behavior stipulated in the law– while oth ers, including those having non exclusive rights do not have such right.
According to the Order N11 issued by the Russian Ministry of Telecommunica tions on of 31.01.2000, affirmed by its License Committee (document N4 of 07.04.2000), a telematic service includes e mail service, the service of an access to in formation resources, such as the booking office, telefax, comfax, burofax, an automat ic processing of oral messages processing and oral information broadcasting.
Table 1. Information about the cases, relating to trademark, service mark and company name infringements through use of domain names, up to 10.05.2001.
N The date The plaintiff and Issue The status of the case Additional information of the case of the first the defendant judgment A40-22492/ 06.07.1999 Cinema Concern "Mosfilm" - Intellectual property In favor of the plaintiff. The domain name mosfilm.ru 99-15323 SA vs. "RosNIIROS" protection, prohibition to The decision of Moscow Arbitration is currently at the plaintiff’s use the company name Court came into legal force on disposal 06.07.A40-25314/ 30.08.1999 "Eastman Kodak Company" Putting an end to the The claim was denied by the Arbitration At the time of the hearing on 99-15-271 vs. entrepreneur A. Grundul, trademark infringement, Courts of three levels. After, 27.03.2001 the infringing site the third Party SC the publication the Vice-Chairman of the Supreme www.kodak.ru did not work "RosNIIROS" of the judgment by the Arbitration Court brought and objection defendant on 06.05.2000, the case was reviewed by the Supreme Arbitration Court of the Russian Federation on 16.01.2001, all previous judicial acts were abolished and after the case was sent to the first level court for a new trial. The court session held on 27.03.2001 decided in favor of the plaintiff.
A40-46846/ 08.12.1999 "Kodak. O.O.O." Intellectual property After the Second Appeal court had twice The company name 99-83-491 vs. protection, prohibition of abolished the acts of the lower courts, infringement was recognized "RosNIIROS", the third party the company name the judgment in favor of the plaintiff as the reason for a lawsuit.
- entrepreneur A. Grundul, misuse was issued The defendant remains the since 04.10.2000, entrepreneur administrator of the domain A. Grundul - the defendant name kodak.ru, there is no connection with the latterConcerning this precedent, the proceeding was discontinued in the end of March 2001 after the defendant has deleted the site, stopped the domain name’s «delegation», while remaining its «administrator»: 16.05.2001 Moscow Arbitration Court sustained the complaint filed by «Kodak O.O.O.» against the court bailiff and abolished the latter’s act of the cessation of the enforcing procedure.
Окончание табл. 1.
N The date The plaintiff and Issue The status of the case Additional information of the case of the first the defendant judgment A40-20169/ 13.07.2000 "Quelle AG vs. Putting an end to Deci si on i n favo r of t he The domain name quelle.ru is 00-51-210 Tandem U. Ltd", "Guls. company name and a pl ai nt i ff. currently at the plaintiff’s Ltd", the third party SC trademark infringement, The decision of the first level Moscow disposal "RosNIIROS" transfer of quelle.ru Arbitration Court came into legal force domain to the plaintiff, on protection of business 03.07.reputation 2/101-2001 09.02.2001 "Kamaz. Co." Putting an end to The claims were rejected on 09.02.2001 Plaintiff the major Russian vs. individual N.I. Popkov, the company name and a by Dzerdginsky district general truck manufacturer.
third party - SC "RosNIIROS" trademark infringement, jurisdiction court of Volgograd City The defendant s site contains the transfer of the domain links to auto sites kamaz.ru to the plaintiff and related information with no obvious commercial purpose Table 2. Information about the cases on copyright infringements, up to 10.05.2001.
N The date of the The plaintiff Issue The status of the case Optional information of the case first judgment the defendant A40-45003/ 10.12.1999 "Promo-RU. Ltd" vs. Compensation as damage recovery at The case was tried twice at The defendant published materials and 99-51-443 "Poznavatelnaja 171.000 rub. and the book’s each level of jurisdiction articles, which were published on Kniga "Advertisement in Internet" deletion until the peaceful agreement Plaintiff’s site http://www.promo.ru, in Plus.Ltd" from the market was concluded in November book "Advertisement in Internet" 18.01.2000 Individual V.G. Copyright protection; recognition of The claim was dismissed by The dispute was over the hyperlink from Sorokin and the the author s rights; making the claim Babushkinsky municipal the site of the defendant Company of the public, the an assignment to stop Court of Moscow. On (http://nagual.pp.ru) to an unauthorized Public Organization access, a recovery of damages at 1.000 12.07.2000 the Civics court copy of plaintiff’s book "The blue lard" "Ad marginem" vs. minimum salary rates and the expertise College of Moscow general (placed on Individual A.A. expenditure jurisdiction court affirmed http://cataracta.chat.ru/salo.htm) Chernov the conclusive determination of lower instance Окончание табл. 2.
N The date of the The plaintiff Issue The status of the case Optional information of the case first judgment the defendant A56-582/00 30.03.2000 "Silmarill. Ltd" vs. Protection of the copyright; the Arbitration Court of The plaintiff claimed that the defendant "Softland.Ltd" restitution in integrum and the St.Petersburg and placed the computer programs on stoppage of any activity, relating to the Leningradsky region http://www.softland.ru, while the rights use of the software product dismissed the case to the latter were arguable A56- 8603/99 06.04.2000 "Silmarill. Ltd" Protection of the copyright; the The judgment of Arbitration The plaintiff imputed to the defendant the vs. "Softland.Ltd" restitution in integrum and the court of St.Petersburg and placing in Internet http://www.softland.ru stoppage of any activity, relating to the Leningradsky region to of the programs, the ownership on which use of the software product dismiss the case came into was arguable legal force A40-38072/ 19.12.2000 "Businessman. Restraint to use the articles by 19.12.2000 Moscow The rights were contested of placing the 00-15-375 Publishing Center. G.Pyanyh and to pay compensation at Arbitration Court rejected materials, previously published in a Co." vs. "Public 1.000 minimum salary rates the claim and the judgment periodical "Businessman" on library. Co.","Vector came into force upon review http://www.public.ru Info. Co." by the Court of Appeal on 06.03.A40-41976/ 12.01.2001 "Media-Lingva. Co." Copyright protection, the recognition 12.01.2000 Moscow The rights were contested to use Russian 0067-415 vs. "Rambler Media of an exclusive right to use the Arbitration Court rejected dictionaries in Internet Internet Holding dictionaries, the stoppage of any the claim, this judgment was (http://www.rambler.ru/dict) Company. Ltd.", activity, relating to the site’s use, sustained by the Court of State unitary payment of 10% of the sum of Appeal and the Court of the company "Russian compensation to the budget, a redress Second Appeal language" publishing of grievance at 3.000.000 rub.
center individual P.A. Stoppage of the exclusive right The lawsuit was filed in The first case on the violation of rights to Sokolov infringement; the book copies autumn 2000, the proceeding music files, the copyright on which vs. Khodakov and confiscation, including their taking is instituted by general belonged to the plaintiff, owner of individual A.U. from Internet, payment of jurisdiction court in Moscow htpp://zvuki.ru. No hearing has taken Antonov 50.000 minimum salary rates place the present timecompensation and the expertise expenses; the lawsuit’s publication Blockage of the defendant’s site taken as a pretrial precaution to prevent the defendant from the change to the site’s content later failed.
lacks a special knowledge in the sphere of telecommunications and Internet, finds it non profitable to buy a special equipment (servers and channels) and have a trained stuff of his own.
So the provider – the owner of the informational network gives to a resource’s owner a possibility (usually for a charge) to create, to place and provide a public access1 to the information; besides, the provider has the possibility of technical and organizational control of the access to the information, placed in Internet, with the help of his system2.
As we know, the Federal Act N24 FA of 20.02.1995 «On information, infor matization and protection of information» (hereinafter – the Act on information) is at the current moment the basic national legislative act regulating the relations in the sphere of information issued in connection with Internet use.
Besides the number of important definitions3, as far as the sphere of informa tional relations is concerned, the act contains art.5 about information – Docu mentation of information.
In accordance with it «a documentation of an information is an obligatory re quirement for the information to be included into a resource», and the document, According to art. 15 of the Federal Act N15 FA of 16.02.1995 ( revised by the Federal Act N8 FA of 06.01.1999, N176 FA of 17.07.1999) «On Telecommunications» the listed kinds of business must be licensed.
The problem of liability of a provider is very interesting: providers neither initiate a placing of an information nor they influence its contents, but they can block it. In what cases it becomes a provider’s duty and when his inactivity or evasion will make him liable for an illegal placing and providing an access to the information (See Nau mov V.B. The problem of information provider’s responsibility. The materials of the third Russian Conference «Law and Internet: Theory and Practice», of 28 29.11.2000, Moscow, p.77–79).
Documented information (document) — the one with fixed on a material medi um requisites allowing its identity;
Information process — the process of gathering, processing, accumulation and storage, search and spreading;
Information system — organized unity of documents and informational technolo gies, including use of a computer and communication equipment, serving information processes;
Information resources — separate documents and their units, documents and their units in information systems (libraries, archives, funds, data repositories, other infor mation systems);
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