Russian Federation: Trademarks Comparative Guide

Last Updated: 16 July 2019
Article by Vladimir Trey

Most Read Contributor in Russian Federation, July 2019
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1 Legal framework

1.1 What is the statutory or other source of trademark rights?

The relevant trademark legislation includes:

  • the Paris Convention for the Protection of Industrial Property;
  • the Madrid Agreement on the International Registration of Trademarks (and the Protocol thereto);
  • the Trademark Law Treaty;
  • the Singapore Treaty;
  • the Agreement on Trade-Related Aspects of Intellectual Property Rights;
  • the Russian Civil Code (Part 4);
  • the Rules on Filing and Consideration of Trademark Applications, insofar as these are in compliance with the Russian Civil Code; and
  • other administrative guidelines and recommendations.

1.2 How do trademark rights arise (ie, through use or registration)?

According to Russian law, trademark rights arise from the moment of state registration. No rights derive from the use of an unregistered trademark.

1.3 What is the statutory or other source of the trademark registration scheme?

  • Part IV of the Russian Civil Code;
  • The Paris Convention;
  • The Madrid Agreement and Protocol;
  • The Rules on Filing and Consideration of Trademark Applications; and
  • Other administrative guidelines and recommendations.

2 What constitutes a trademark?

2.1 What types of designations or other identifiers may serve as trademarks under the law?

According to the Civil Code, a ‘trademark' is "a designation serving for individualising goods of legal entities or individual entrepreneurs' (Article 1477). Any protectable word, design, slogan, sound, symbol or similar that is capable of identifying goods and services can serve as a trademark. The list of signs that may function as trademarks is non-exhaustive, which allows for the registration of non-traditional marks. Article 1482 of the Civil Code provides that verbal, pictorial, three-dimensional and other indications or their combinations may be registered as trademarks. A trademark may be registered in any colour or colour combination. The wording ‘other indications' confirms that the law is quite liberal in this regard.

Colour marks (either colours per se or colour combinations), sound marks, texture marks, olfactory marks, position marks, hologram marks, motion marks, taste marks and so on may be registered in Russia, but their inherent registrability depends on distinctiveness: either distinctive features of the mark per se or acquired distinctiveness through intensive use.

2.2 What are the requirements for a designation or other identifier to function as a trademark?

In Russia, marks that lack distinctiveness cannot be registered. The legislation sets out a list of designations that are considered to lack distinctiveness; however, in some situations it is at the discretion of the Federal Service for Intellectual Property to decide whether a mark is distinctive. The legislation further provides for the registration of marks based on acquired distinctiveness.

2.3 What types of designations or other identifiers are ineligible to function as trademarks?

A trademark application may be rejected on either absolute or relative grounds, or on both absolute and relative grounds.

Absolute grounds relate to the substance of the mark itself and include:

  • lack of distinctiveness;
  • risk of misleading or causing confusion;
  • identity or similarity to state symbols and marks;
  • reproduction of full or abbreviated names of international or intergovernmental organisations or their symbols; and
  • reproduction of the official names or images of valuable objects of Russian or worldwide cultural heritage.

Relative grounds for refusal include:

  • similarity to the extent of confusion with prior trademarks (both registrations and applications) owned by third parties in relation to similar goods or services;
  • identity to, or similarity to the extent of confusion with, well-known marks; and
  • identity to, or similarity to the extent of confusion with, third parties' industrial designs, appellations of origin, company names or commercial designations.

A trademark may also be refused protection if it incorporates:

  • protected means of individualisation of other persons (or confusingly similar signs);
  • copyrighted objects owned by third parties; 
  • names, pseudonyms (or derivatives thereof), pictures or facsimiles of famous persons; or
  • industrial designs owned by third parties.

3 Registration procedure

3.1 Which governing body (ie, trademark office) controls the registration process?

The Federal Service for Intellectual Property (Rospatent).

3.2 What fees does the trademark office charge for an application, during prosecution and for issuance of a registration?

The official fee for filing and formal examination of a trademark application (in one class) is RUB 3,500. The official fee for filing and formal examination of a trademark application in each additional class over five is RUB 1,000. The official fee for substantive examination of a trademark application (in one class) is RUB 11,500. The official fee for substantive examination of a trademark application in each additional class over one is RUB 2,500.

The official fee for registration of a trademark is RUB 16,000. The official fee for registration of a trademark in each additional class over five is RUB 1,000.

The official fee for issuance of the certificate is RUB 2,000, independent of the number of classes.

Discounted official fees are available in case of electronic filing.

3.3 Does the trademark office use the Nice Classification scheme?

When filing a trademark application, it is necessary to specify the goods and services for which protection is sought using clear and precise wording which reflects their nature. The wording must be classified according to the Nice Classification, depending on the nature and purpose of the goods and services. Several classes can be claimed in one trademark application and additional classes can be added during examination of the application. The goods applied for can be transferred to new classes, provided that such changes to the list and re-classification do not broaden the scope of the protection that was initially requested.

3.4 Are ‘class-wide' applications allowed, or must the applicant identify the specific goods or services for which the mark will be used?

In Russia, the scope of trademark protection is defined by the list of goods and services covered by the trademark. Under current Russian practice, the class heading simply designates the fields to which the applied goods and services may relate in general, and does not cover all goods and services in a given class. When filing an application, it is possible to specify the class heading, the list of specific goods and services, or both the class heading and the specific goods and services. The latter is preferable because it allows the applicant to obtain broader protection and to seek registration for those goods that are most important to its business.

3.5 Must an applicant have a bona fide intention to use the trademark for the goods or services identified in the application in order to apply for registration?

No. Russia is a first-to-file jurisdiction.

3.6 Does the trademark office perform relative examination of trademark applications (ie, searches for earlier conflicting marks)?

Yes, a trademark application may be rejected by authorities on the following grounds:

  • identity to, or similarity to the extent of confusion with, a prior trademark (whether registered or pending registration) owned by a third party in relation to similar goods or services;
  • identity to, or similarity to the extent of confusion with, a well-known mark; and
  • identity to, or similarity to the extent of confusion with, the industrial design, appellation of origin, company name or commercial designation of a third party.

3.7 What types of examinations does the trademark office perform other than relative examination?

A trademark application may be rejected either on absolute or relative grounds, or on both, absolute and relative grounds. Absolute grounds are those that concern the substance of the mark itself and include:

  • lack of distinctiveness;
  • risk of misleading or causing confusion;
  • identity or similarity to state symbols and marks;
  • reproduction of full or abbreviated names of international or intergovernmental organisations or their symbols; and
  • reproduction of the official names or images of valuable objects of Russian or worldwide cultural heritage.

3.8 Apart from confusion with a senior mark, descriptiveness and genericness, are there other grounds under which a mark is ineligible for registration, such as public policy reasons?

A trademark may also be refused protection if it incorporates:

  • protected means of individualisation of other persons (or confusingly similar signs);
  • copyrighted works owned by third parties; 
  • names, pseudonyms (or derivatives thereof), pictures or facsimiles of famous persons; or
  • industrial designs owned by third parties.

3.9 Is there a separate or supplemental register on which descriptive marks may be registered?

No.

3.10 Can a third party object to registration of a mark before the application has been published (eg, by letter of protest to the trademark office)?

The Civil Code provides as follows:

  • The Federal Service for Intellectual Property (Rospatent) will publish details of the filed trademark application.
  • Third parties have the right to review all trademark documents on file, not just those comprising the original trademark application.
  • Third parties have the right to submit to Rospatent their written observations on the pending trademark application before official action is taken. Such written observations may be considered by the examiner during the examination, but this ‘quasi' opposition process is not competitive.

Russian legislation foresees another instrument for objecting to registration of a trademark. Within five years of publication of a trademark registration in Rospatent's Official Bulletin, the owner of prior trademark rights may file an invalidation action with Rospatent. The trademark owner will be notified accordingly and both parties will be invited to a hearing at which the matter will be considered. The examiner will then decide on the matter and either:

  • reject the invalidation action and leave the trademark in force;
  • invalidate the mark in full; or
  • invalidate the mark in part.

An invalidation action or cancellation action against a registered trademark on other grounds foreseen by the law may be filed at any point while the registration remains valid.

3.11 Must the applicant use the trademark commercially in order to obtain a registration?

No.

3.12 How much time does it typically take from filing an application to the first office action?

Eight to 10 months

3.13 How much time does it typically take from filing an application to publication?

Information about filed trademark applications is published within several days of filing. Information about registered trademarks is published immediately upon registration.

4 Appeals

4.1 If the trademark office refuses registration, can the applicant appeal? If so, to what body and by what procedure?

If a mark is partially accepted for registration, the applicant has two options: pay the registration fee to register the mark for the accepted goods or appeal to the Chamber of Patent Disputes (a division of the Federal Service for Intellectual Property (Rospatent)) within four months of the date of dispatch of the decision to the applicant. The decision of the Chamber of Patent Disputes may be further appealed to the IP Court.

4.2 What is the procedure for appealing a trademark office refusal?

The Civil Code provides for an administrative appeal process, through which Rospatent's decision to refuse trademark protection may be appealed to the Chamber of Patent Disputes within four months of the date of dispatch of the decision to the applicant. If the appeal deadline is missed, it may be reinstated within six months, provided that the applicant explains the reasons for the delay.

4.3 Can the reviewing body's decision be appealed? If so, to what body and by what procedure?

The decision of the Chamber of Patent Disputes may be further appealed to the IP Court.

5 Oppositions

5.1 Can a third party oppose a trademark application?

Third parties have the right to submit to the Federal Service for Intellectual Property (Rospatent) their written observations on pending trademark applications before official action is taken. Such written observations may be considered by the examiner during the examination, but this ‘quasi' opposition process is not competitive.

5.2 Who has standing to oppose a trademark application?

Any interested party has standing to file written observations against a trademark application.

5.3 What is the timeframe for opposing a trademark application?

Written observations may be filed during examination of the application.

5.4 Which body hears oppositions?

No hearing takes place. The examiner will decide on the application taking into account the materials provided in the file (including written observations and the applicant's responses, if any).

5.5 What is the process by which an opposition proceeds?

If written observations are filed, the examiner will inform the applicant accordingly, which will then submit a response to Rospatent providing arguments to address the observations raised. The applicant's arguments shall be taken into account when deciding whether to grant registration if they are submitted within six months of notification about examination results.

5.6 Can the decision on the opposition be appealed? If so, to what body and by what procedure?

There is no opposition process as such; only observation as explained in question 5.5. Substantive examination is followed by the examiner's decision. The examiner will either:

  • decide to register the mark for all goods and services;
  • decide to register the mark for some of the goods and services; or
  • decide to deny registration altogether.

Rospatent's decision may be appealed within four months of the date of dispatch of the decision to the applicant. The decision of the Chamber of Patent Disputes may be further appealed to the IP Court.

6 Rights of registered and unregistered marks

6.1 What, if any, protection is afforded to unregistered trademarks?

Russia is a first-to-file jurisdiction. Legal entities and entrepreneurs that are first to apply for registration of a trademark enjoy a priority right to registration. The Russian trademark legislation does not recognise prior use rights (as a general rule, the exclusive right to use a trademark in Russia arises as a result of state registration).

According to the Russian legislation, trademark rights arise from the moment of state registration and no rights derive from the use of an unregistered trademark. However, Part IV of the Russian Civil Code, which came into force in January 2008, introduced a new IP right: the ‘commercial designation'. This is close to a trademark in nature, but the right arises through the use of the commercial designation within a particular territory without any need to register before an administrative body, such as the Federal Service for Intellectual Property (Rospatent).

6.2 What legal rights are conferred by a trademark registration?

As Russia is a first-to-register jurisdiction, trademark registration is of the utmost importance and provides the trademark owner with the ability to enforce its mark. In addition, trademark registration makes it possible to record the trademark in the IP Customs Register, thus preventing the unauthorised import of branded goods into Russia.

6.3 If there is a separate register for descriptive marks, what legal rights are conferred by registration therein?

No.

7 Enforcement and remedies for trademark infringement

7.1 What remedies are available against trademark infringement?

Within the framework of civil proceedings, a trademark owner (or its registered/exclusive licensee) is normally entitled to seek the following legal remedies:

  • injunctive relief (preliminary and permanent injunctions);
  • monetary relief (damages or monetary compensation);
  • seizure and destruction of counterfeit goods and related equipment/materials; and
  • publication of the court order.

Civil actions are widely used as the most efficient and viable enforcement option to tackle parallel imports and grey-market goods, including trademarked products offered on the Internet, as well as contractual post-termination trademark issues.

In accordance with the applicable (administrative) law, the unlawful use of a trademark shall incur an administrative fine, as well as confiscation of counterfeit goods (and related equipment/materials) for the purpose of destruction.

The illegal use of a trademark may also lead to criminal prosecution (if the infringer's illegal activities cause substantial damages or if trademark infringement is repeated). The typical statutory criminal sanctions are a criminal fine, forced labour, corrective measures and imprisonment.

Trademark infringement may further constitute an act of unfair competition. Passing off and imitation of trade dress are also treated as unfair behaviour which may be prosecuted. Should the action on unfair competition succeed, the infringer will be forced to cease the illegal activities and pay an administrative fine of up to 0.15% of the infringer's profits.

Sending a cease-and-desist or demand letter has become a prerequisite for filing a court action in certain instances. In particular, the trademark owner cannot claim damages or monetary compensation in a civil action if it has not first sent a cease-and-desist letter to the infringer.

A trademark can be recorded in the special IP Customs Register to prevent unauthorised importation of parallel imports/counterfeits into Russia.

7.2 What remedies are available against trademark dilution?

There is no specific definition of ‘dilution' in either case law or legislation. However, Russian law includes dilution-type cause of actions: either recognition of a trademark as well known or filing of an unfair competition action through the Federal Anti-monopoly Service or its territorial bodies.

In particular, a well-known trademark provides its owner with the following important advantages:

  • The legal protection of a well-known trademark is not time limited.
  • Protection extends to goods or services of a different kind from those for which the mark is recognised as well known if consumers are likely to associate use of the mark by a third party with the owner of the well-known trademark in a way which might impair its lawful interests.
  • Protection of a well-known mark may pre-date the filing date of the respective request for recognition of the mark as well known.
  • The commercial value of a well-known trademark is greater than that of an ordinary trademark.

7.3 Does the law recognise remedies against other harms to trademark rights besides infringement and dilution?

In addition to trademark law, unfair competition law – notably, the provisions regarding disparagement/tarnishment and lookalikes – protects against dilution of a trademark.

7.4 What is the procedure for pursuing claims for trademark infringement?

Civil infringement proceedings begin with the trademark owner collecting evidence, drafting a claim and then filing a lawsuit with a court. Russian law does not provide for discovery proceedings. The court will base its decision on the evidence submitted by the parties. Where matters require special knowledge, an independent expert may be appointed by the court. Live testimony is allowed, but not commonly used, as courts prefer to rely on material evidence and written submissions. It normally takes four to six months to obtain a first-instance decision in civil proceedings.

An administrative and criminal enforcement mechanism begins with the filing of a complaint with the police (or public prosecutor). During the proceedings, an independent expert may be appointed by the police investigator. The final decision in an administrative or criminal case is issued by a court. Administrative proceedings usually take about three to four months, whereas criminal proceedings usually take about one to two years.

7.5 What typical defences are available to a defendant in trademark litigation?

The most common defences are:

  • expiry of the statutory limitation period;
  • fair use;
  • in cases involving individuals, personal circumstances (e.g., financial standing, age);
  • abuse of rights – a legal ground for the court to dismiss the infringement action (e.g., where the trademark owner does not use the trademark and the only purpose of filing suit is to inflict harm on a competitor);
  • non-infringement (eg, challenging the evidence); and
  • initiation of an invalidation action against the trademark. An invalidation action is considered by the Federal Service for Intellectual Property (Rospatent) and does not constitute grounds for the court to postpone or suspend the infringement proceedings.

Trademark infringement litigation and invalidation cases are independent from each other. The defendant may also initiate an unfair competition action, claiming that obtaining trademark registration and suing for infringement constitute acts of unfair competition (e.g., where a trademark is registered by a distributor or other third party with the aim of preventing the producer of genuine goods from distributing its goods on the Russian market).

7.6 What is the procedure for appealing a decision in trademark litigation?

If no appeal is filed, the decision enters into force in one month. A decision of the Court of Appeals enters into force as of the date on which it is issued in writing and may be appealed to the IP Court within two months. A decision of the IP Court can be appealed to the Economic Collegium of the Supreme Court within two months; its decision can in turn be appealed within three months to the Presidium of the Supreme Court.

The courts of first instance consider trademark infringement cases on the merits. One judge will hear the case. The first-instance decision will enter into force one month after the date of issuance of the court ruling, provided that it is not appealed.

If the ruling is appealed, a panel of three judges will hear the appeal. The appeal should be decided within two months, although this term can be extended in complex cases. The ruling of the court of appeal will enter into force from the date of adoption and can be appealed before the IP Court (as court of second (cassation) appeal for trademark infringement disputes) within two months.

The ruling of the IP Court will enter into force from the date of its adoption. It may be further appealed before the Supreme Court of the Russian Federation (as court of second cassation), and a supervisory appeal can be filed with the Presidium of the Supreme Court of the Russian Federation.

8 Maintenance and removal of registrations

8.1 What is the length of the initial term of registration and what is the length of renewal terms?

A trademark registration remains in force for 10 years from the date of filing the trademark application. It may be renewed indefinitely every 10 years thereafter. No evidence of use is required for maintenance of a trademark registration.

8.2 What, if anything, must be submitted to the trademark office to maintain or renew a registration?

A request to renew the trademark registration and confirmation of payment of the respective renewal fee.

8.3 What are the grounds for cancelling a trademark registration?

Non-use within three years of registration and liquidation of the trademark owner.

8.4 Under what circumstances may the trademark office cancel a registration on its own initiative?

The Federal Service for Intellectual Property (Rospatent) may not cancel a registration on its own.

8.5 What is the procedure by which a third party may seek cancellation of a trademark registration?

Any interested party may request the cancellation of a mark for non-use. A non-use action can be brought before the IP Court if the mark has not been used in the three consecutive years preceding the established pre-trial procedure, as outlined below.

Prior to filing a claim for non-use, a party with a legitimate interest must send a letter to the trademark owner asking it either to surrender its trademark rights through Rospatent or to assign the mark at issue to the claimant. The trademark owner has two statutory months to perform either action. If it fails to do so, the claimant has 30 days (following the expiration of the two-month period) to file suit for non-use with the IP Court.

During the trial, the claimant must demonstrate a legitimate interest in the cancellation, while the trademark owner must show use of the mark by disclosing relevant documentary evidence. If the claimant succeeds, the trademark registration will be cancelled from the effective date of the decision of the IP Court.

In addition, a revocation action based on liquidation of a trademark owner can be filed with Rospatent by any party at any point while the trademark remains valid. The revocation action must contain evidence of liquidation of the trademark owner.

8.6 What is the procedure for appealing a decision cancelling a registration?

A decision to revoke a trademark based on liquidation of the trademark owner can be appealed to the IP Court.

9 Licensing

9.1 Are there particular requirements, such as quality control by the licensor, for a trademark licence to be valid?

As a general rule, an IP licence must be executed in the form of a written instrument (agreement) that clearly demonstrates the will of the contracting parties in relation to the subject matter of the deal and that contains the material terms required by law, depending on the nature of the deal.

With respect to the quality of goods produced and sold under licence, the licensee and licensor shall bear joint and several liability to consumers.

9.2 Must trademark licences be recorded with the trademark office or other governing body?

Under Russian law, registration of a contract that mainly concerns the grant of certain licensing rights to registrable intellectual property (including trademarks and service marks) is mandatory, regardless of whether the grant is national or international.

Registration of the licence agreement is a condition for the validity and enforceability of the contract. A non-registered licence agreement in relation to registered intellectual property will be null and void and generally unenforceable by the contractual parties.

9.3 Can a licensor lose its rights in a trademark by failing to comply with its obligations under the licence, such as maintaining quality control?

No. However, with respect to the quality of goods produced and sold under licence, the licensee and licensor bear joint and several liability to consumers.

10 Protection of foreign trademarks

10.1 Under what circumstances may foreign trademarks not registered in the jurisdiction be enforced (eg, under unfair competition law)?

Foreign trademarks not registered in Russia may benefit from protection under unfair competition law/procedure. However, in such case it is necessary both to prove that the trademark is famous and to provide evidence of promotional activities carried out by a Russian distributor.

10.2 Does the trademark office permit registration of a mark based on a foreign or international (Madrid) registration?

Yes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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