the Arbitration court of Moscow on 11 may ruled to collect from the publishing house “Ventana-Graf”, which is included in the group “Eksmo-AST”, hitherto unknown in cases of this kind the amount of 3.7 billion rubles in the claim of publishing house “Prosveschenie”. The lawyer of the publishing house, partner at Bryan Cave Leighton Paisner (Russia) Llp Elena Trusova told “the Tape.ru” about the paradoxes, perhaps the most notable cases of intellectual property protection in the country.
“Ribbon.ru”: how it all began and how the situation developed around the trademark of “Enlightenment”?
Elena Trusova: it All started with the fact that the publishing house “Ventana-Graf” when you print their literature began to use the designation similar to the point of confusion with the trademarks of the publishing house “Enlightenment” in the form of a stylized colored globe. “Enlightenment” went to court and won the argument by proving admitted “Ventanas-Count” violations and sought compensation for violation of trademark rights in the amount of 3.7 billion rubles. In an effort to avoid paying compensation, the opponent appealed in patent office a statement contesting the legal protection of trademarks “Enlightenment” and filed a lawsuit in the court for intellectual property rights on the recognition of the trademark “Education” act of unfair competition.
What, in your opinion, you want to gain opponents?
Obviously, they want to avoid prosecution and payment of compensation in accordance with the established judicial decision. In my opinion, all their claims are not aimed at the real protection of rights, and to justify their violations. “Ventana-the Count” has long used the trademark “Education” in their literature. The reason for such action, “a’m sure Ventana-Graf” is easily explained: “the Enlightenment” have invested heavily in promoting their trademarks, in particular produced about four million books with logo of a stylized globe. This made the logo recognizable, and the reputation of the publishing house “Enlightenment” has led to high degree of consumer confidence, did not fail to take advantage of competitors.
Based on a public interview, the “Enlightenment” absolutely confident in its position in this litigation. From the point of view of an expert, than this position is backed up?
If we talk about the position of the publishing house “Ventana-Graf”, it is quite simple. Trademarks of “Enlightenment” are the official logos of educational standards that were supposedly developed by “Education” for the state in the framework of the state contract. However, the state itself in the person Ministry of education and science of the Russian Federation confirmed that in principle there is no official logo educational standards and that each market participant indicates to the satisfaction of its literature standards in their own way, using their own notation. Separately, the Ministry pointed out that the trademark of “Enlightenment” is not the logo of the state educational standards.
the Agency has completely ignored the state’s position and concluded, contrary to the position of the Ministry of education and science that the trademarks of “Enlightenment” is the logo of educational standards. This approach is paradoxical. Signs are deprived of protection in the interests of the state, but the state itself declared that his interests are not violated. However, the Agency apparently believes that he knows better what we need the Ministry of education, what would it say.
Even more interesting situation happened with the state contract, according to which the alleged “Enlightenment” has developed a logo for the state in the face of Russian Academy of education. The fact that the contract expressly provide that it does not involve the creation of intellectual property. A contract for technical support of the website. Moreover, the Russian Academy of education submitted a letter stating that the state contract with “Education” for her no logos have been developed.
But in this case, the Rospatent has ignored the words of a state body (essentially the state), the interests of which he supposedly fought, depriving the marks of legal protection.
in addition, during the hearing we have provided dozens of examples of how different publishers indicate the compliance of their products to educational standards as evidence that a unified logo simply does not exist. Other publishers do not bother to develop their own visual element, but the “Ventana-the Count” was easier to get ready and promoted the logo of “Education”.
There is one feature that clearly illustrates the entire artificiality of the position of Rospatent and “‘m sure Ventana-Graf”. The designation is used “Ventanas-Count” on his books, similar to the point of confusion with the trademarks of “Enlightenment”, but not identical. Why would you change the logo of “Education”, if the argument of our opponents, they used the official logo of the educational standard? For example, if you use the coat of arms of the Russian state in the form of the eagle, then it makes no sense to modify, pririsovyvat new parts — you use the same for all and known to all designation. “Ventana-the Count” tries to sit on two chairs: on the one hand, to prove that a trademark is “Enlightenment” — the official symbol of educational standards that is universal and known to all, on the other hand, to justify the lawfulness of the use of modified, reworked designation. In my opinion, the logical defect of this position quite clear, sorry, that is not the Rospatent.
“Ventana-the Count” also refers to the fact that the alleged designation in the form of a stylized globe was used as the logo of the Federal educational standards by different individuals both before and after the priority of the trademark of the publishing house “Enlightenment”. As evidence of “Ventana-Graf” results in the presentation of different faces posted on the Internet. Most of these evidence are irrelevant, because to challenge the registration of a trademark is possible only by reference to the evidence relating to the period before the priority date of the trademark. “Ventana-Graf” was presented by a single presentation that meets this criterion, where the logo of the publishing house “Enlightenment” is placed next to the copyright symbol of the publishing house “Enlightenment” (in a circle) that indicates whether the logo is “Education”. However “Ventana-the Count” continues to insist that the logo of the publishing house “Enlightenment” on the website of state standards automatically means that the logo belongs to the state.
the Final touch that accentuates the defects of the position “a’m sure Ventana-Graf” and demonstrating how she is far from the truth, is that the first educational standards were approved only in 2009, and the logo of “Enlightenment” was used by the publisher for one and a half years earlier. It turns out that the first “Enlightenment” was to use its trademark for his books, and then, the logic “a’m sure Ventana-Graf”, he in some mysterious way suddenly turned into a logo of the state standards after their adoption. This position is unusual and original from the point of view of the neglect of the chronological regularities and common sense.
What signals the market gives a controversial decision of Rospatent, which repealed the previously registered their marks? Which of the arguments presented in the decision of Rospatent, don’t you agree?
of Course, this is a negative signal to the market, because in this case violated the principle of stability of civil turnover. Despite the fact that during the first trial in violation of the rights to the trademark “Enlightenment” won the case, the decision of Rospatent questioned the ability to protect the copyright of their rights. If there is no real chance of defending their logo, why then do we spend so much effort and money on its creation and promotion?